CHAPTER II The Merchant
Extract
CHAPTER II The Merchant
SECTION IV - THE MERCHANT AND HIS ENTERPRISE7. A merchant is a person who ' exercises a commercial profession ' (wer ein Ilandelsgewerbe betreibt), sect. I HGB. It is not necessary that he exercises his profession personally; he may have an agent who acts on his behalf, or, if he is a minor or a lunatic, he may be represented by a guardian. A commercial company has a general manager and other 'organs' (a German notion not known in English law) who act in the name of the company. In such cases it is not the agent or manager or guardian who is the merchant, but the principal. Thus a new-born child, by succeeding to his deceased father, may become a ' merchant' by birth. If a partnership exercises a commercial profession-the partnership not being a legal person-each of the partners is a merchant, though the business is not carried on on his behalf alone, but on behalf of all the partners in common. If a merchant is designated as a person having a commercial profession, this does not necessarily mean that it is his only or even his main profession. 8. The problem therefore arises: What kinds of enterprise are to be regarded as of a 'commercial' or 'mercantile' character? (a) They must be enterprises conducted with the intention of making profit or at least with a manifestation of such intention. It is not necessary that a man actually makes profit out of his enterprise, nor is it indispensable that he should truly intend to do so. It is sufficient that he behaves as if he had that intention. If, on the other hand, his intention to make money has not been made manifest, but remains secret, he has no commercial enterprise and is not a merchant, as e.g. in the case of the speculator who for years has lived on what he gains by buying and selling on the stock exchange, but does not want anybody (except his broker) to know it.(b) Two kinds of enterprise must be sharply distinguished from each other: (aa) An enterprise may be commercial simply through the nature of its business, without any further requirements, see on this section V below, or (bb) an enterprise may become commercial when its business-name has been entered in the commercial register, See on this section VI below. SECTION V - ENTERPRISES COMMERCIAL THROUGH THEIR NATURE9. There are nine types of enterprises which are commercial merely through the nature of the business. The persons in whose name they are carried on are merchants even if they are not registered as such. These are the following: (a) The purchase and re-sale (alienation) of commodities or securities such as bonds, shares, bills of exchange. Purchase means acquisition from another person, notably on the basis of a contract of sale. The peasant who sells the produce of his farm, the hunter, the fisherman, etc. are not merchants, even if they keep commercial books. Re-sale or alienation of goods acquired by purchase does not require the goods thus purchased to be re-sold without alteration. The industrialist who sells goods after having bought raw materials and transformed them into mercantile goods in his factory, is a merchant in the sense of the law. So is the shoemaker, if he buys leather and sells the shoes manufactured by him; so are the tailor, the baker, the butcher, etc. They are merchants even if their enterprise is very small, for example, if they work without help. Where, on the other hand, a man buys goods not in order to sell them, but intending to make money *by lending them, he has (according to German law) no commercial enterprise, and is not a merchant. EXAMPLE: a buyer of horses who i...
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