Extract
CHAPTER IV Commercial Acts
SECTION XXXIII - INTRODUCTION - CONCLUSION OF COMMERCIAL CONTRACTS
161. The concept of commercial acts has been explained, see above section IX. They are acts performed by a merchant and pertaining to his enterprise. It may be remembered that, generally speaking, the same rules are applicable to commercial as to non-commercial acts. Only on particular points, not connected inter se, have special rules been established for commercial acts. The conclusion of commercial contracts is one of these points. 162. Special rules of commercial law exist in respect of suretyship contracts, of 'abstract' promises and ' abstract' documents of debt (see on these terms in general Part I, para. 134 above). According to the BGB (sections 766, 780, 781), all these contracts need a written declaration. But if the suretyship is commercial on the part of the surety, and if those abstract engagements are commercial on the part of the debtor, no formality need be observed; section 350 HGB. 163. Under ordinary civil law a contract demands an offer and its acceptance; if the offeree neither accepts nor declines but remains silent, there is no contract. Where however the offer concerns the management of the offeror's affairs and the offeree is a merchant whose business includes such management of another person's affairs, or who has declared his willingness to undertake such management, and if he does not answer the offer, his silence is regarded as acceptance; section 362 HGB. EXAMPLES: (1) The banker or broker B is asked by A to sell for him certain securities, which A has annexed to his letter. B remains silent. The mandate is valid, and if B does not try to sell the securities, he has broken a valid contract. (2) The merchant M, a professional dealer in pianos, receives from X the offer to sell him a specified piano for a certain price. M does not answer the offer. There is no contract. SECTION XXXIV - THE CONTENT OF COMMERCIAL OBLIGATIONS164. Only a very few rules of commercial law deal with the content of obligations. According to the BGB (section 276) a debtor is bound to use such care as is necessary in ordinary usage. The commercial code demands from the debtor-merchant the care of a 'careful merchant' (section 347) or of a 'careful businessman' (section 202 HGB, section 84 Companies Act), and in the case of a contract of carriage or affreightment the care of a 'careful carrier' (section 429 HGB). In practice there is no great difference between the BGB formula and the formula chosen by the commercial code. For in order to determine what care is 'necessary in ordinary usage ', one would obviously be guided by the degree of care which would be exercised by a careful man of a particular profession. 165. According to the BGB section 343 the court may reduce any contractual penalty which it finds excessively high and replace it by a proper amount. This does not apply if the promisor of the penalty is a 'full merchant' and has made the promise in the exercise of his profession; section 348, 351 HGB. 166. According to the BGB the statutory interest on a debt is 4 per cent. (section 246). The commercial code replaces this by 5 per cent., if the duty to pay interest is based either on a rule of the commercial code or on a contract which is commercial on the part of both the creditor and the debtor; section 352 HGB. 167. Under civil law statutory interest on a debt is due only if the debtor has delayed payment of the debt. The commercial code (section 353) grants interest from the date when the debt is due, provided the debt results from a contract between merchants pertaining to both their respective enterprises. 168. The old legal adage 'the merchant does nothing gratuitously' still correctly describes the law. A merchant who in the course of his business manages an affair for another person or performs a service for him can, even without an agreement, ask for a commission or for payment of storage dues; section 354 HGB. EXAMPLE: A banker allows one of his customers, who is going away for a holiday, to deposit a trunk filled with valuables. The customer is grateful for the banker's kindness, but he has to pay for it. 169. Finally a curiosity: In German the term 'eight days' (acht Tage) mean...See the full content of this document
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