In common parlance, every person who is commercially active or has learned the trade of a businessman (e.g. industrial clerk / bank clerk) is referred to as a businessman.
A merchant in the legal sense is someone who runs an independent commercial business on a long-term basis with the aim of making a profit.
The distinction is important because the strict rules of the Commercial Code (HGB) apply only to merchants, while the rules of the BGB apply to private individuals in business.
Every natural and legal person can be a merchant; however, the rules on legal capacity also apply here.
A distinction is made according to the type of merchant status:
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These are merchants by virtue of the law, i.e. even without entry in the commercial register. If a person operates one of the following basic trades listed in Section 1 (2) of the German Commercial Code (HGB), he or she is a merchant by virtue of the basic trades:
- Acquisition and resale of goods (industry, craft, wholesale and retail)
- Contract labor operations, if not operated as a craft
- Banks and currency exchange
- Transport companies (including passenger transport) and freight carriers
- Commission agents, freight forwarders, warehouse keepers
- Handelsvertreter und Trade broker
- Publishing, book and art dealers
- Printing works, provided that they are not operated as a craft
Anyone who runs a craft or commercial company that is not mentioned in § 1 of the German Commercial Code (HGB), but which requires a business operation that is commercially set up in terms of type and scope, is a merchant by virtue of dutiful entry. In contrast to mandatory merchants, intended merchants only acquire merchant status through entry in the commercial register. You are obliged to have the entry made.
Example: A hotelier with a small family business is neither a must-have nor a should-do merchant. However, is the hotel business so extensive that various departments such as B. bookkeeping or human resources are set up, it is a target merchant.
Wer einen land- oder forstwirtschaftlichen business oder ein dazu gehörendes Nebengewerbe hat, das nach Art und Umfang einen kaufmännischen Geschäftsbetrieb erforderlich macht, kann sich aus eigenem Willen in das Handelsregister eintragen lassen. Die Person ist dann Kaufmann kraft freiwilliger Eintragung.
Examples: Sawmill, dairy, sugar factory
All corporations, cooperatives and mutual insurance associations are merchants by virtue of their legal form, regardless of whether they operate a trade or a commercial business is required.
Example: A detective agency in the legal form of a GmbH
Depending on the size of the business, the following important difference can be made:
A full merchant is a person who has all the rights and obligations of a merchant under the HGB. Target merchants, optional merchants and form merchants are always full merchants. On the other hand, the must-buy merchant is different. In this case, there is only the status of a fully qualified merchant if the trade requires a business set up in a commercial manner.
Anyone who, according to Section 1 of the German Commercial Code (HGB) is a compulsory trader, but has a very small business that is not set up in a commercial manner, is considered to be a minor trader.
Example: A kiosk as a one-person operation
In contrast to full merchants, under-traders have fewer rights and obligations. A minor merchant may:
- only use the real name (no company)
- not be entered in the commercial register
- do not grant power of attorney, but only power of attorney
- do not establish a partnership such as a general partnership or a KG
- only guarantee in writing