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Business law is an area of private law that is specifically tailored to the legal needs and requirements of companies and entrepreneurs. It differs from general private law in several key respects, particularly with regard to the rapid processing of transactions and the protection of trust.

Entrepreneurs and business transactions

An entrepreneur in the legal sense is a natural or legal person who independently carries out an economic activity. It is not the designation that is decisive, but the actual nature of the activity. The decisive factor is that it is carried out in a planned manner, on one's own responsibility, and with an economic objective.

C operates a ski lift that is closed during the summer months due to a lack of visitors. He also sells various items on an internet platform as part of the liquidation of his deceased parents' estate. C wonders whether this constitutes an entrepreneurial activity.

An entrepreneur acts independently, i.e., on his own account and at his own risk. He makes decisions about the organization, process, and direction of his activity independently of instructions from third parties. This personal responsibility distinguishes him from an employee, who is integrated into operational structures and bound by instructions.

C operates the ski lift at his own expense and risk. He is responsible for the operation, organization, and associated financial risks. A also acts on his own account and at his own risk when clearing out the household, as he carries out the sales independently and the proceeds go directly to him. In both cases, A acts on his own account and at his own risk.

The activity of an entrepreneur must be of an economic nature and aimed at generating income. It is not decisive whether a profit is actually made or whether there is an intention to make a profit. Non-profit organizations are also considered entrepreneurs if they offer paid services on the market.

C's sales are aimed at generating income, which constitutes an economic activity. However, the purpose of making a profit is not a necessary prerequisite. The decisive factor is that C offers the items for a fee, which is the case here. The operation of the ski lift is an economic activity aimed at generating income through the sale of lift tickets or other services. Both activities are carried out in return for payment.

Entrepreneurial activity requires regular or continuous activity. Anyone who only engages in economic activity on an occasional basis, such as the one-time sale of private items, is not considered an entrepreneur. The activity must be designed to be repeated and show a certain consistency in market activity.

Even if the ski lift is only operated seasonally during the winter months, the activity remains permanent. The temporary closure during the summer does not prevent the ski lift from being considered a permanent business, as operations are resumed regularly. In contrast, clearing out a household is a one-off, irregular activity, so that entrepreneurial status cannot be assumed in relation to clearing out a household.

An entrepreneurial activity requires systematic, structured organization. This includes the use of operating resources, the use of business premises, the employment of staff, or the establishment of operational processes. These characteristics show that the activity is carried out professionally and aims at long-term market participation.

The operation of a ski lift requires considerable organization, including maintenance of the equipment, hiring staff during the season, and looking after guests. This is clearly a structured and organized activity. Clearing out a household and selling items on a platform does not usually require professional organization. It is a private activity that can be carried out without any business infrastructure (e.g., warehouse, regular customer service).

In contrast to an entrepreneur, a person who does not meet the criteria for entrepreneurial status is referred to as a consumer. Consumers are considered worthy of protection due to their typically lower level of knowledge. If an entrepreneur and a consumer enter into a legal transaction, this is referred to as a consumer transaction.

Consumer protection regulations lay down mandatory rules for consumer transactions, which are intended to protect consumers from being taken advantage of. In certain circumstances, consumers have the right to withdraw from contracts, e.g., in the case of door-to-door sales. Consumers also have a mandatory right to certain information.

In contrast to consumers, who are often considered to be in need of protection, entrepreneurs are assumed to have a lower need for protection. Entrepreneurs typically act on the basis of specialist knowledge, business experience, and entrepreneurial expertise. Therefore, corporate law is less oriented toward protective regulations, as is common in consumer protection law, and instead focuses on the self-determination and personal responsibility of the parties involved.

In transactions between entrepreneurs, the principle applies that these are in case of doubt for consideration. This principle is based on the assumption that entrepreneurs act within the scope of their business activities and do not usually provide their services free of charge. Consideration is presumed here unless an agreement to the contrary has been expressly made or arises from the circumstances of the transaction.

Entrepreneur A trades in machinery and sells an industrial mixer to entrepreneur B for use in his business. Even if it is not expressly discussed during the handover whether the mixer is being provided free of charge or whether B has to pay for it, it will be assumed that it is for consideration.

Another example of a deviating rule in business-to-business transactions is the shortened warranty period. Entrepreneurs must inspect delivered goods immediately and report defects within a reasonable (short) period of time. If a defect is not reported in time, the buyer loses their claims, even if the defect actually exists. Only if the seller has deliberately or grossly negligently concealed the defect does the claim remain valid.

Questions

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Beispiel: Is Lisa an entrepreneur in the legal sense?

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Beispiel: Does Thomas become an entrepreneur through his rental activities?

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Beispiel: Is Petra engaged in entrepreneurial activity?

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Beispiel: Is the contract considered to be remunerated or non-remunerated?

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Beispiel: Can he still assert warranty claims?

Summary

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