Commercial business management
We have already summarized some of the merchant’s rights and obligations and what the merchant should actually do must also be mentioned. The focus is on all transactions that the merchant conducts within the framework of the commercial enterprise. These so-called ” legal transactions customary in the industry ” that are concluded for the company. These are supplemented by so-called “auxiliary transactions”.These types of business are not really typical of the company, but they help ensure that normal business operations can be carried out smoothly. For example, it may be the case that a company is not active in the real estate industry, but the auxiliary business of renting a sales area is carried out by the merchant in order to enable the business typical of the company, e.g. the sale of goods, to take place .
Apart from legal transactions, the merchant also carries out similar transactions that are not formally legal transactions. This can be, for example, sending a reminder that is not a legal transaction in itself, but may be necessary as a measure for business operations. The activities of the prudent businessman must therefore always be attributable to the operational purpose , so that these are clearly separated from private activities.
In case of doubt, it can be assumed that a businessman concludes a legal transaction belonging to the company and not privately. Should there be a dispute about it, it would first have to be proven that a business was of a private nature and cannot be attributed to the business.
Form merchant – legal forms
A form merchant is used when it is a merchant who becomes a merchant by virtue of the legal form. This applies to all trading companies with their own legal personality , which includes Aktiengesellschaft, GmbH and KGaA. A special feature is that OHGs and KGs are also viewed as form merchants by law. In addition, registered cooperatives are recorded and even associations can become form merchants through the law.
What is it here? The quality of the businessman can be achieved quite easily for companies of various legal forms . It is therefore important that you know the resulting rights and obligations if you act as a mold merchant or if your company falls under this regulation.
Apart from the form merchant, there are other forms of the merchant that need to be differentiated and that have some peculiarities. We would now like to introduce these to you in more detail.
- Actual merchant
- Bogus merchant
- Fictional merchant
These forms exist alongside the form merchant, which means that only one form can be accepted at a time. What is the exact difference between these sometimes very special looking merchants?
Difference between actual merchant, optional merchant and form merchant
The form merchant is a merchant by virtue of the legal form, whereby the entry in the commercial register has a constitutive effect. So it is a merchant according to the commercial code, with the mentioned obligations such as the accounting obligation and the possibility of issuing a power of attorney .
If we are not talking about a trading company, of traders (trading companies excluded), then these trades can be operated with or without a commercial organization. If there is a commercial organization, it is referred to as an actual businessman who runs the trade and is only declared by the entry in the commercial register. In other words, this means that the entry here only serves as information, but does not mean that the characteristics of the businessman are achieved.
If no commercial organization, so we are moving in the area of Can merchant , which the option is whether he wants to be registered in the commercial register. Incidentally, this also includes all agricultural and forestry companies. If registration is voluntary , it is constitutive. This means that this is also a merchant according to the German Commercial Code (HGB), the property is obtained through the (voluntary) entry.
If, on the other hand, there is no voluntary registration, then it is a non-merchant . In principle, these are then small businesses. As a result, they are not fully subject to the German Commercial Code (HGB). You do not have to run your own company , the accounting obligations are significantly reduced and no partnership is founded.
In summary, the following requirements are important for the respective properties:
|Is a businessman||Can-businessman||Non-merchant|
We are operating in a very theoretical-sounding area, which you absolutely have to understand if you are self-employed or want to start a company . The HGB and the commercial register are not particularly fun, but they influence your daily activities . Therefore, you need to know what exactly a mold merchant is, what other types of merchants there are and what rights and obligations are associated with it.
It is particularly important that you know when the HGB will fully apply to you. In this way, you can be sure that your own actions comply with these requirements and that everything in your company is tailored to these requirements – from correct bookkeeping to the terms and conditions , which consumers cannot deny certain rights.
In case of doubt, you should therefore always check exactly what situation your company is in and what the legal situation in the HGB looks like in detail, because as a businessman you have far-reaching obligations here.