Legal transactions undertaken by a merchant for the operation of their commercial enterprise are referred to as commercial transactions under the German Commercial Code (§ 343 HGB). Only the private legal transactions of a merchant are excluded from commercial transactions, whereby according to § 344 HGB, the presumption applies that legal transactions undertaken by a merchant always belong to the operation of their commercial enterprise. Some special types of commercial transaction contracts frequently encountered in practice (commercial sale, commission business, freight business, forwarding business, warehousing business) are roughly summarized below:
a) Commercial Sale (Handelskauf)
A commercial sale is a commercial transaction that has as its object the purchase of goods or securities. In contrast to the usual purchase under civil law, the commercial sale is undertaken by at least one merchant for the purpose of their commercial business.
The provisions of the Civil Code generally apply to the commercial sale, whereby in addition, some deviating provisions from commercial law apply. In the German Commercial Code, these special provisions can be explicitly found in Book IV of the HGB in §§ 373 ff. In Greek law, the special form of the commercial sale is not legally provided for, so that the general provisions of the Civil Code would have to be resorted to. However, this is under the premise that the regulations for the protection of the consumer do not apply to a purchase transaction between merchants.
Of decisive importance within the framework of a mutual commercial sale is, in particular, the buyer’s obligation to immediately inspect the purchased goods promptly after their delivery. Should a defect become apparent in this context, this must be notified to the seller immediately; if they omit this, the goods are deemed approved, unless it involves a non-recognizable defect. This so-called duty to give notice of defects is regulated in the German Commercial Code in § 377 I HGB.
Further special regulations to be observed in practice within the framework of a commercial sale are the extension of the seller’s rights in the event of the buyer’s default of acceptance (deposit and self-help sale, explicitly regulated in § 373 HGB), as well as the fixed-date commercial sale, which grants the respective other party a right of withdrawal or a claim for damages for non-performance in the event of failure to provide the contractual performance at a fixed time or within a fixed period.
The sales contract law of the Civil Code is adapted to the requirements of commercial traffic on a case-by-case basis when a “commercial sale” exists.
b) Commission Business
Another special form of a commercial transaction is the so-called commission business, whereby an entrepreneur, the commission agent, professionally undertakes to buy or sell goods or securities for the account of another (the principal) in their own name. As remuneration for their service, the commission agent receives the agreed or an appropriate commission.
Within the framework of a commission business, a distinction must first be made between the commission contract, which is concluded between the commission agent and the principal and in which the essential regulations of the cooperation are established, and the execution transaction, which is entered into in the external relationship between the third party and the commission agent, and which the commission agent undertakes in fulfillment of their duties under the commission contract.
After the execution transaction has been carried out, the agreed commission is paid by the principal to the commission agent within the framework of a settlement transaction, who in return hands over the obtained purchase price to the principal. Since the commission agent acts in their own name within the framework of both the execution and the own transaction, these transactions must be distinguished from one another.
The commission agent is bound by instructions, particularly with regard to the pricing, which in practice is determined alongside the commission within the framework of the commission contract.
The special regulations on commission business can be found in §§ 383 ff. of the German Commercial Code. Comparable provisions are not found in the Greek Commercial Code. Generally, general provisions of the Greek Civil Code regarding agency, service, and work contracts are used as a basis, as well as, among others, regulations governing brokers for civil law matters pursuant to Arts. 197-204 of Law 4072/2012 (formerly from Presidential Decree P.D. 248/1993).
c) Transport Business (Freight, Forwarding, and Warehousing)
The commercial transactions of transport law that occur very frequently in practice within the framework of the transport of goods and are characteristic thereof are the freight business, the forwarding business, and the warehousing business.
1. The Freight Business
In the freight business, a carrier is essentially obliged by a contract of carriage to transport specific freight to a destination and deliver it there to the recipient.
In return, the sender undertakes to pay the agreed freight (remuneration for the transport of the goods) to the carrier. The carrier’s essential main contractual obligations include the actual transport of the contractual goods to the destination agreed with the sender and delivery to the recipients. Special regulations and further details are provided in the German HGB in §§ 407 ff. The Greek Commercial Code (Royal Decree 19/1835) also contains regulations on freight and forwarding businesses (Arts. 90-94 and 100-107), whereby, among others, the special regulations of transport law as well as CMR etc. are also used as a basis.
2. The Forwarding Business
The forwarding business is a commercial transaction in which the freight forwarder undertakes to arrange the shipment of goods in return for the agreed remuneration. In this context, the arrangement of the shipment of goods encompasses the overall organization of the transport and can cover further services related to the transport.
Contrary to general usage, the forwarding business must be differentiated from the freight business, since the forwarder does not carry out the transport itself, i.e., the actual carriage of the goods (like the carrier), but rather organizes transport as a whole and concludes all contracts necessary for this. The forwarding business therefore acquires a significant role in international transport business, since with the internationalization of markets, entrepreneurs do not take care of the transport of their goods themselves, but turn to specialized companies that help them find the most suitable and cost-effective way to carry out the transport of goods on the freight market.
The forwarding business is regulated in §§ 453 ff. of the German HGB. Further special regulations such as the respective tasks, liability, and the due date of the remuneration claim are contained therein. Due to its legal character of agency business, the forwarding contract is a special case of the agency contract under commercial law.
3. The Warehousing Business
The special form of the warehousing business is frequently encountered, particularly within the framework of international transport, as one can often not manage there without the interim storage of goods. However, the storage of goods also often occurs in domestic trade, since entrepreneurs rarely have sufficient storage facilities. The object of the warehousing contract is essentially the commercial storage of goods for a period. Through the warehousing contract, the warehouse keeper is obliged to store and keep the goods, whereas the depositor is obliged to pay the warehouse keeper the agreed remuneration.
Depending on their status as a consumer or entrepreneur, the depositor may be subject to certain further secondary obligations that they must fulfill towards the warehouse keeper, including, among others:
- Duty to pack and duty to label – suitable packaging for protection against loss and damage
- Duty to inform – especially if dangerous goods are to be stored
- Duty to provide documents – making all documents and information available to the warehouse keeper, etc.
The warehouse keeper, on the other hand, is subject not only to the duty of storage but also to further duties of care/custody, which are either explicitly regulated by law (§§ 467 ff. HGB) or can also be derived under Greek law (including Law 3077/1954 alongside the provisions of the Civil Code on the deposit contract, etc.), the detailed execution of which is, however, dispensed with here.