In connection with different types of company, the terms “legal persons” or “form merchant” are often used . In this article, we’ll show you what that means exactly and what subtleties need to be considered. In addition, we go into the various forms of merchants and also discuss the obligations that result for you and your company if the commercial code has to be complied with in full.
Mold clerk – definition
Various forms of company are considered to be a formal merchant , such as the GmbH , the AG and also the KGaA and the registered cooperative, whereby this property only arises after the entry in the commercial register has been completed .
In the sense of the HGB , a form merchant is a merchant “by virtue of the legal form”. Mold merchants are trading companies – which are legal entities – and equivalent companies, including the aforementioned cooperatives. Similarly OHG and KG covered, even if they are not registered in the commercial register.
What is a trade?
The term commercial trade is important, as companies can become form merchants through their legal form, even without operating a commercial trade. The trade is subject to trade law.
A trade is, so to speak, the actual business of the company . The commercial trade requires a corresponding business operation, so depending on the type and scope of the trade, it is to be expected that this is associated with certain activities of the company. That sounds very theoretical, but to put it simply, it covers every commercial company whose plan is to exist in the long term and generate income.
The owner of the trade is always a merchant – and this is where the connection to the term “form merchant ” arises.
What are non-merchants?
Even if this is a special case that occurs comparatively rarely, the non-merchants should not be left unmentioned. This is a silent partnership that is not a trading company, as are corporations, associations or interest groups. None of them are structured like a typical trading company.
How do you become a mold merchant?
The status of the mold merchant is achieved by law through the legal form . Because the HGB provides that trading companies with their own legal personality and equivalent forms, e.g. also registered associations, are considered to be form merchants. This status is justified by the entry of the company in the commercial register , because only from this point does it become a mold merchant. The time at which this formal act is completed decides, so that the legal personality is given and the status of the mold merchant is accordingly established through the entry.
Rights and obligations of the mold merchant through his merchant status
There is of course a good reason for being a mold merchant, because it comes with clear rights and obligations . When mold merchants conclude contracts with one another or enter into business relationships, different regulations apply in many respects than when private individuals conduct business with one another or a private individual purchases something from a company. The quality of the merchant thus has an impact on many aspects of commercial law, for example on the guarantee and the possibility of contractually agreeing certain things for which protective provisions would apply in transactions with consumers.
The central duties of a businessman include things that at first seem like a matter of course. The proper, complete bookkeeping can be mentioned here as an example . In summary, it could be said that the law defines what exactly it legally means to act to the best of your knowledge and belief, to be honest and to run your own company responsibly.
A prerequisite is also that a businessman has the appropriate specialist knowledge – also with regard to the relevant legislation, so that it can be ensured that the entire company is managed in accordance with the legal requirements. The reverse is that companies receive less protection from the law than, for example, private individuals, who are assumed to have less specialist knowledge. Legal transactions between companies are therefore simpler and less regulated by law .
The type of commercial transaction differs depending on the contracting parties. The following distinction is made:
| Mutual trade | Unilateral trade | Special trading business |
| If both contracting parties are merchants, this is referred to as a mutual commercial transaction. | If a legal transaction is concluded between a merchant and a consumer , however, we refer to this transaction as a unilateral commercial transaction. | Exceptions confirm the rules: some special transactions are considered “special” commercial transactions, such as commission business and freight contracts. |
