Commercial transactions

Legal transactions carried out by a merchant in the operation of their commercial business are referred to, under the German Commercial Code, as commercial transactions (§ 343 HGB); § 344 HGB establishes a presumption that legal transactions carried out by a merchant always form part of that merchant’s commercial business. The special contract types commonly encountered in practice — the commercial sale, the commission transaction, and the carriage, freight-forwarding, and warehousing business — are outlined below, together with their Greek-law equivalents.

a) Commercial sale

A commercial sale is a commercial transaction having as its subject matter the purchase of goods or securities, carried out by at least one merchant for the purposes of their commercial business. Unlike an ordinary civil-law sale, the commercial sale is, by definition, entered into by at least one merchant for that purpose. Under German law, alongside the general provisions of the Civil Code, the special rules of §§ 373 et seq. HGB apply — in particular, the buyer’s duty of examination and notice of defects under § 377(1) HGB (prompt inspection and notification of defects following delivery), the seller’s extended rights in the event of the buyer’s default in acceptance (deposit, self-help sale, § 373 HGB), and the rules on sales for delivery by a fixed date.

Under Greek law, no dedicated statutory regime for the commercial sale exists to this day; the general provisions of the Civil Code apply instead (Αστικός Κώδικας, including Articles 513 et seq. AK on the contract of sale) — on the premise, however, that the consumer-protection provisions (in particular Law 2251/1994 on consumer protection) do not apply to a sale between merchants.

Of decisive practical importance for a commercial sale between two merchants is the buyer’s obligation to inspect the goods promptly upon delivery. Where a defect is found, it must be notified to the seller without delay; failing this, the goods are generally deemed accepted — unless the defect was not reasonably discoverable. This so-called duty to give notice of defects is governed under German law by § 377(1) HGB. Further special rules concern the extension of the seller’s rights in the event of the buyer’s default in acceptance (§ 373 HGB) and sales for delivery by a fixed date.

b) Commission transaction

In a commission transaction, the commission agent undertakes, on a commercial basis, to buy or sell goods or securities in their own name but for the account of another (the principal), in return for a commission. A distinction is drawn between the commission agreement (the internal relationship between the commission agent and the principal) and the execution transaction (the external relationship with the third party); once the execution transaction has been carried out, the settlement transaction follows (payment of the commission, and accounting for the sale price). The commission agent is bound by the principal’s instructions, in particular as to pricing. Under German law, the relevant rules are found in §§ 383 et seq. HGB.

Under Greek law, the commission transaction (παραγγελία) is separately governed by Articles 90 et seq. of the Εμπορικός Νόμος (the Commercial Code of 1835): Article 90 defines the commission agent (παραγγελιοδόχος) as the person who acts in their own name, or under a trade name, for the account of a principal. Where the commission agent instead acts in the name of the principal (direct representation), Article 91 of the Εμπ.Ν. refers additionally to the civil-law provisions on mandate/agency (Articles 713 et seq. AK) and, depending on the arrangement, to the provisions on service or construction contracts. Recourse to Law 4072/2012 is not applicable here; that law concerns separate company-law and intellectual-property matters.

c) Carriage transactions (carriage, freight-forwarding, and warehousing business)

In a carriage transaction, the carrier undertakes, by a contract of carriage, to transport specified goods to a place of destination and to deliver them there; in return, the sender undertakes to pay the agreed freight. The carrier’s principal obligations are carriage and delivery. Under German law, the relevant rules are found in §§ 407 et seq. HGB.

Under Greek law, the carrier’s (μεταφορέας) liability is governed by the Εμπορικός Νόμος, in particular Articles 97 et seq., and especially Articles 102–105 and 107 Εμπ.Ν.: under these provisions, the carrier is liable for loss of or damage to the goods carried from the time they are taken over until delivery, unless the loss or damage is due to force majeure. In cross-border road transport, international conventions such as the CMR (ratified by Greece) additionally apply and, as the more specific body of law, largely displace the national provisions.

Contrary to common usage, the freight-forwarding business must be distinguished from the carriage business: the freight forwarder does not itself carry out the carriage, but organises the dispatch and concludes the contracts necessary for that purpose. The freight forwarder therefore acts as an organiser, finding the most favourable route on the freight market on behalf of the client. Under German law, this is governed by §§ 453 et seq. HGB as a commercial special case of the agency contract.

Under Greek law, no dedicated statutory codification exists for the freight-forwarding contract (διαμεταφορά). It is treated as a sui generis agency contract under the general civil-law provisions (including those on mandate, Articles 713 et seq. AK) and is, in practice, chiefly shaped by the industry-standard general terms and conditions of freight forwarders (Γενικοί Όροι Διαμεταφοράς) and, for cross-border transport, by the relevant international transport conventions.

The warehousing contract has as its subject matter the commercial storage of goods for a period of time. The warehouse keeper undertakes storage and safekeeping, and the depositor undertakes to pay the remuneration. The depositor is subject to ancillary obligations, including: a duty to package and mark the goods; a duty to provide information (in particular for dangerous goods); and a duty to issue the relevant documents. The warehouse keeper is subject, alongside the duty of safekeeping, to duties of care; under German law, these are expressly governed by §§ 467 et seq. HGB.

Under Greek law, the corresponding obligations — at least for the establishment and operation of licensed general warehouses (γενικές αποθήκες) — arise from the Legislative Decree (Ν.Δ.) 3077/1954 “On General Warehouses”. This legislative decree, despite its age, remains in force today and was most recently amended in part by, among others, Article 161 of Law 4512/2018; it governs, in particular, the administrative licensing, operation, and pledging of stored goods by means of warehouse receipts.