TURGERLEGAL - Expertise. Reliability. Dedication
Lawyer for commercial law in Berlin
Your competent specialist lawyer in commercial law
Commercial law refers to the law that applies specifically to merchants.
Under commercial law, traders enjoy greater contractual freedom, allowing them to structure their business activities flexibly and effectively. In particular, issues of intellectual property rights and contract law in the B2B sector play a crucial role.
To ensure that you, as a retailer, always keep track of your legal options, I am happy to provide you with comprehensive advice. Contact me and benefit from my expertise in commercial law.
What is commercial law?
Commercial law is a specialized area of law that applies to merchants. In addition to the German Civil Code (BGB), which primarily governs law between private individuals, merchants can also rely on the German Commercial Code (HGB). In an international context, the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies. In addition, customary law provisions and commercial practice are considered binding, even if they have no statutory basis. In addition, there are specific regulations in civil procedure law, corporate law, banking law, capital markets law, stock exchange law, and securities law that belong to commercial law.
The term merchant
The concept of a merchant represents a central point of reference. A merchant is defined as someone who conducts a commercial business. Both legal entities and natural persons can have the status of a merchant.
Legal entities are referred to as "form merchants" solely based on their legal form. These include:
- the general partnership OHG
- the limited partnership KG
- the registered cooperative eG
- Stock corporation AG
- European Public Limited Company SE
- European Cooperative SCE
- the limited liability company GmbH
- and the association eV
Natural persons can also have the status of a merchant either due to their function, e.g., as an authorized signatory, or through their commercial activities. This is particularly the case for sales intermediaries such as commercial brokers, sales representatives, or commission agents. The type of sales intermediation depends on the specific contractual terms. Authorized dealers and franchisees act in their own name, while commercial agents act on behalf of others in return for a commission.
The most important factor is whether the person is registered in the commercial register or whether the business is considered commercial due to its size or organization.
The term “merchant” includes not only traditional traders, but also service providers or entrepreneurs in primary production, i.e. in sectors such as agriculture, forestry, fishing, mining or quarrying.
A commercial business is any business that, in terms of its nature and scope, requires commercial operations. Liberal professions such as tax consultants, lawyers, doctors, or architects are exempt from this. In certain cases, the distinction can be difficult and requires a precise interpretation of the activity context. As a merchant, you must register in the commercial register, which is maintained by the local district court (AG). The commercial register is publicly accessible and contains information about company owners, shareholders, liability assets, authorizations, capital (if applicable), and articles of association.
Contract law in the B2B sector
Commercial law grants merchants greater freedom, particularly in the area of sales law, where there is greater contractual freedom. In trade between merchants, for example, formal requirements can be deviated from, deadlines shortened, or delivery conditions specified. Good examples of this are the notification of defects in warranty claims or a merchant's letter of confirmation after the conclusion of a contract, where silence can be interpreted as confirmation or consent. For this reason, it is crucial that merchants are well-versed in commercial law to ensure they do not miss out on their rights.
Merchants also enjoy greater freedom when drafting contract templates. Commercial law is particularly advantageous for joint ventures, cooperation agreements, and licensing agreements concluded at multiple levels. In contrast to dealings with consumers (business to customer, B2C), merchants also have more leeway in drafting general terms and conditions. However, unreasonable discrimination remains prohibited under the German Civil Code (BGB), although certain prohibitions on general terms and conditions clauses do not apply to relationships between merchants (business to business, B2B). General terms and conditions clauses that unreasonably disadvantage the contractual partner are therefore invalid.
How does the process work?
Legal problems can easily arise when dealing with all these regulations. Disputes in private commercial law can be resolved out of court or in court. For example, chambers of commerce and industry offer arbitration tribunals where independent arbitrators are appointed. This is often faster and more cost-effective than a judgment from a regular court. Legal representation is important, as arbitration awards are enforceable like court judgments. However, when lawsuits are filed in civil court, the procedure follows the German Code of Civil Procedure (ZPO). This largely leaves the course of the proceedings to the will of the parties. Depending on the value in dispute, jurisdiction lies either with the local court (AG) or directly with the regional court (LG). In the case of appeals and revisions, the appeal process proceeds via the higher regional courts (OLG) to the Federal Court of Justice (BGH) in Karlsruhe. Legal representation is mandatory.
My focus is on current case law
Given the constant change in the economy, legal disputes in commercial law are constantly being heard in court. These often revolve around issues of intellectual property rights. One example is the case in which the Federal Court of Justice had to rule on the color of Lindt Gold Bunny as a so-called trademark. In addition to Sparkasse red and Telekom's magenta, the manufacturer of chocolate bunnies also opposed the use of golden yellow packaging. In another case, the Berlin Regional Court ruled on star ratings on the Google search engine. The court concluded that it is prohibited to display false star ratings that do not correspond to the official assessments of the DEHOGA association. Misleading markings therefore constitute unfair competition. The COVID-19 pandemic is also affecting companies. The question was raised whether, in an emergency, loss of earnings could be granted through an interim injunction. However, the Heilbronn Regional Court saw no reason for this and rejected the application unless the company faced an existential emergency.
My services for you
I advise and represent you in all aspects of commercial law: from general terms and conditions and contract drafting to intellectual property rights. Constantly new commercial practices, reforms, and current case law make commercial law so dynamic and complex. With my advice, you are on the safe side legally. Thanks to my many years of practical experience, you have a competent and discreet partner at your side. My work for you includes the following services:
- Contract law
- Contract design
- Cooperation and licensing agreements
- Debt collection
- Review of contract templates
- Representation of commercial agents and authorized dealers
- Commission claims
- Compensation claims
- Terms and Conditions Design
- Organization of shareholders' and supervisory board meetings
- Business succession
- Legal questions on e-commerce and competition law
- Contract design
- Intellectual property rights
- Advice on trademark law, patent law, unfair competition
- Review/preparation of contracts: license agreements, utilization
- Litigation / lawsuits
- warnings
- Claim for damages
- Injunction
- Trademark/copyright/patent/plant variety rights infringements
Frequently Asked Questions (FAQ)
Commercial law simplifies business transactions between merchants. It allows for greater flexibility in formal requirements, warranties, and contract drafting. However, it also removes the protection afforded by some regulations. Therefore, it is important for merchants to have legal knowledge in sales law.
A commercial power of attorney (Prokura) is a comprehensive power of attorney regulated by the German Commercial Code (HGB). It can be granted by a merchant and allows representation in all legal transactions, except for fundamental ones such as filing for insolvency. The power of attorney is registered in the commercial register.
General terms and conditions are invalid if they deviate from the law and place an unreasonable disadvantage on the other party. Furthermore, the German Civil Code (BGB) has established a catalogue of invalid clauses against consumers.
Commercial agents are professionals in the field of business brokerage and work as independent businesspeople. Examples of commercial agents include brokers, agents, and commission agents. The decisive criterion for differentiation is the cooperation agreement, which determines whether the commercial agent acts in their own name or on behalf of another, and whether they work for their own account or for the account of another.
Franchisees operate in their own name and on their own account. They manage their business independently and pay the franchisor a franchise fee. Commercial agents, on the other hand, act as representatives and broker a transaction either directly or indirectly between a client and a third party.
A merchant is someone who operates a commercial business. A company is a formal merchant due to its legal form, as are natural persons due to the commercial scope of their activities (organization, scale). This also includes primary production (use of nature) and the provision of services. Liberal professions such as doctors, architects, and engineers are not merchants within the meaning of the law.
By virtue of their legal form, all commercial companies are automatically merchants according to the German Commercial Code (HGB) in conjunction with the various laws governing company forms, such as the Limited Liability Companies Act (GmbHG). Therefore, they are referred to as "formal merchants."
If your intellectual property rights are infringed or if unfair competition under the Unfair Competition Act (UWG) exists, you can first seek an injunction against the infringement. In addition, you are entitled to compensation if you have suffered any damage.
Cease and desist letters are common in intellectual property law. This form of out-of-court dispute resolution can avoid high court and procedural costs and expedite the process. Agreements reached within the framework of a cease and desist letter are enforceable in court.
According to the Act against Unfair Competition (UWG), the conduct of a company on the market is unfair if it does not comply with entrepreneurial diligence and the consumer is strongly influenced in his or her behavior, such as misleading advertising, pyramid schemes or aggressive sales methods.
