Commercial law
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Commercial law – the law of merchants
The trader occupies a central position in economic activity. Over the years, commercial law has developed into a special set of rules for merchants, offering them greater freedom in the design of contracts. The areas of intellectual property law and contract law between companies (B2B, business to business) are particularly important.
In order to give you a clear overview of the legal options, we as experienced lawyers in commercial law are at your side with sound advice and support.
Our areas of expertise
Commercial Agency Law
Support and advice in the drafting and review of contracts for commercial agents in order to minimize legal risks and protect the interests of your company.
contracts with a foreign element
Expert support in drafting and negotiating contracts with international business partners to legally protect your cross-border business relationships.
Creating and reviewing general terms and conditions
Tailor-made creation and legal review of your terms and conditions to ensure the smooth running of your business processes and avoid legal disputes.
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3Commercial law – what does it mean?
Commercial law is a special law for merchants. In addition to the German Civil Code (BGB), which basically regulates the legal relationships between private individuals, merchants also have the option of using the German Commercial Code (HGB). At an international level, the UN Convention on Contracts for the International Sale of Goods (CISG) applies. In addition, customary law provisions and commercial practice are legally binding, although they have no legal basis. Other specific regulations on commercial law can also be found in the Code of Civil Procedure (ZPO) as well as in company law, banking law, capital market law, stock exchange law and securities law.
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The Concept of the Merchant: A New Version
The central concept in commercial law is that of the merchant. A merchant is anyone who runs a commercial business. Both natural and legal persons can attain this status.
Legal entities are considered so-called formal merchants due to their corporate form. These include, among others:
- the general partnership (OHG)
- the limited partnership (KG)
- the registered cooperative (eG)
- the stock corporation (AG)
- the European Company (SE)
- the European Cooperative Society (SCE)
- the limited liability company (GmbH)
- the registered association (eV)
Natural persons can also attain the status of a merchant through their function - for example as an authorized representative - or through their commercial activity. This applies in particular to sales intermediaries, such as commercial brokers, sales representatives or commission agents. The exact type of intermediation varies depending on the type of contract: authorized dealers and franchisees act on their own account, while sales representatives act on behalf of a third party and for a commission.
What is crucial is whether a person is registered in the commercial register or whether their business is considered commercial due to its size or organization.
The term merchant includes not only classic traders, but also service providers and entrepreneurs who are active in so-called primary production. Primary production is the extraction of raw materials from nature, such as in agriculture, forestry, fishing, mining or quarries.
A commercial business is any business that, by its nature and scope, requires commercial operations. The so-called liberal professions, such as tax consultants, lawyers, doctors or architects, are excluded from this. However, the distinction between these professions and a commercial business can be difficult in individual cases and requires a precise examination of the field of activity.
Anyone who is considered a merchant must register in the commercial register. This is kept by the responsible local court and is publicly accessible. This allows anyone to see who is running the company, which partners are involved, how the liability relationships are regulated, and whether there is any information on capital and statutes.
Contract law in the B2B sector: flexibility and freedom in commercial law
In commercial law, merchants enjoy greater freedom, which is particularly evident in the area of sales law through expanded contractual freedom. Trade between merchants makes it possible to deviate from legal requirements, for example by waiving formal requirements or by agreeing shorter deadlines and specifying delivery conditions. Examples of this are the regulations on complaints about defects in warranty claims or the commercial letter of confirmation, which can imply confirmation or consent from the merchant after the contract has been drawn up. In such cases, silence on the part of the merchant can be interpreted as consent, which is an important practice in commercial law for merchants to assert their claims.
Merchants also have greater scope for designing contract templates. Extensive and complex framework agreements, such as joint ventures, cooperation and licensing agreements, are particularly typical for commercial law. In contrast to the business-to-consumer (B2C) sector, where there is stricter regulation of contract terms, merchants in the business-to-business (B2B) sector have more freedom, particularly when it comes to designing general terms and conditions (GTC).
However, there are also restrictions in the B2B sector: unreasonable discrimination against the contractual partner is not permitted here either. According to the German Civil Code (BGB), general terms and conditions that unreasonably discriminate against the contractual partner are invalid, so merchants must ensure that contract terms are formulated fairly and in a balanced manner, even in the B2B sector.
Trademarks, patents and design –
The Value of Intellectual Property Protection
Industrial property protection is an essential part of fair competition between companies and protecting consumers. It is divided into the protection of intellectual property and the fight against unfair competition. While goods have a tangible value, intellectual property is also of great importance. This includes the brands, designs, patents and identity of a company, which are part of its intangible assets. Industrial property protection ensures that these values are not used without authorization.
Responsibility for the protection of patents and trademarks lies with the German Patent and Trademark Office (DPMA), the central authority in Germany where companies can register patents and initiate legal proceedings. In addition, Patent Information Centers (PIZ) in the individual federal states work in close cooperation with the DPMA. The specific laws that apply to the various forms of intellectual property are as follows:
- Patent Act (PatG) protects technical inventions
- Trademark Act (MarkenG) regulates the protection of brands and products
- Design Act (DesignG) protects the external appearance of products
- Copyright Act (UrhG) protects creative works
At the same time, industrial property rights also protect third parties from unfair actions by companies. The Act against Unfair Competition (UWG) ensures that unfair business practices such as deception or unjustified discounts are prevented. A company that pretends to be a consumer in order to circumvent legal protection regulations is committing unfair competition.
In the event of infringements of trademark rights, patents or competition law violations, companies can initially issue a warning. In comparison to a lawsuit, warnings are quicker and less expensive because they aim to resolve the conflict directly. The aim of a warning is to reach an out-of-court settlement in which the infringer issues a cease-and-desist declaration and the injured party receives compensation. If no agreement is reached, the case can be heard before the responsible regional court (LG), whereby both parties must be represented by a lawyer due to the mandatory presence of a lawyer.
litigation –
An overview of the process
In business, legal conflicts can arise quickly, and there are various ways to resolve disputes in private commercial law - either out of court or in court. A common out-of-court solution is arbitration courts, which are organized by chambers of commerce and industry, for example. In these proceedings, independent arbitrators are appointed who can decide the dispute more quickly and often more cost-effectively than a court procedure. It is important to note that arbitration awards, like court awards, are enforceable, which is why legal representation is important here too.
However, if the civil courts are chosen, the procedure follows the Code of Civil Procedure (ZPO), which largely leaves the design of the procedure up to the parties. Depending on the value in dispute, the local court (AG) or the regional court (LG) is responsible. In certain cases, such as appeals or revisions, the appeal process goes through the higher regional courts (OLG) to the Federal Court of Justice (BGH) in Kassel. In all of these legal proceedings, legal representation is mandatory, as it ensures that the proceedings are carried out properly and that the rights of the parties are protected.
Competent advice in commercial law
As lawyers specializing in commercial law, we are at your side with comprehensive advice and representation in all relevant areas. Commercial law is particularly dynamic due to constant innovations, commercial customs and current case law and is often difficult to keep track of. With our expertise, you can be sure that you are legally protected. With our many years of practical experience, we offer you competent, discreet support and tailor-made solutions.
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