commercial register

noun · Handelsregister

The Handelsregister is not a directory but a source of liability: under § 15 HGB a fact that should have been registered and was not cannot be raised against a third party who did not know it, and a registered and published fact must be accepted by everyone. Nobody has to have looked at the register for that protection to work.

Which translation, when

negative Publizitätthe unregistered fact: as long as a fact requiring registration has not been entered and published, § 15 Abs. 1 HGB bars the person in whose affairs it was to be registered from raising it against a third party, unless that party knew of it, and the burden of proving such knowledge lies on the person who failed to register; the protection is abstract, so the third party need never have consulted the register.

positive Publizitätthe registered fact: once entered and published, a third party must accept the fact against himself, § 15 Abs. 2 HGB, with a fifteen-day window for transactions after publication where he proves he neither knew nor had to know it, and Abs. 3 protects reliance where an entered and published fact was entered incorrectly, unless the third party knew of the inaccuracy, a wording that dates the source, since until the digitalisation reform took effect in August 2022 the provision turned on an incorrect publication rather than an incorrect entry.

Abteilungen und Wirkungwhat is in it: the register is kept electronically in two divisions, the first for sole traders and partnerships, the second for corporations, and the entries differ in effect, some merely declaratory and others constitutive, the formation of a company being the classic case the incorporation entry holds.

Why

Commercial register translates as Handelsregister, and the reason it needs an entry of its own is that the German register does something English company registration does not: it allocates risk. The mechanism sits in § 15 HGB and runs in both directions. Under Abs. 1, as long as a fact that had to be registered has not been entered and published, the person in whose affairs it was to be registered cannot raise it against a third party unless that party actually knew of it, and the person who failed to register bears the burden of proving that knowledge. The classic case is the manager who has been removed but still appears in the register, and the protection is abstract, meaning the third party is protected whether or not he ever looked, so a company that delays filing carries the risk of its own inertia. Under Abs. 2 the direction reverses: once a fact has been entered and published, a third party must let it count against him, with a narrow exception for transactions within fifteen days of publication where he proves he neither knew nor had to know, a period to be read against the reformed publication rules, under which an entry becomes public through its first availability for retrieval and counts as published at the end of the day it was made, so entry and publication now fall together instead of being two dated events. Abs. 3 completes the picture by protecting the third party who relied on an entry that was published but wrong, unless he knew of the inaccuracy. Beyond that liability mechanism the register is a document collection kept electronically in two divisions, the first covering sole traders and partnerships and the second corporations, and the effect of individual entries differs: many are merely declaratory while some are constitutive, and the case where registration actually creates the legal person is held by the incorporation entry rather than repeated here.

Typical mistakes

An unregistered fact cannot be raised against a third party who did not know it, § 15 Abs. 1 HGB, so a translation treating registration as a formality misses where the risk lies.
The third party need not have consulted the register for the protection to apply, so arguing that he did not look does not help the person who failed to register.
Some entries are constitutive and others merely declaratory, so a general statement about the effect of registration will be wrong for one group or the other.

What matters

Checking whether a German counterparty was properly represented: the analysis should compare the register entry with the actual position, ask whether an unregistered change was known to the other side, and treat the fifteen-day window after publication separately.

Authority

§ 15 HGB

What the machine misses

Machine output gives Firmenbuch or Unternehmensregister for commercial register, the first Austrian and the second a different German institution, while the German register is the Handelsregister with the liability mechanism of § 15 HGB behind it; the wrong word also turns a source of third-party protection into a mere directory.

See what the machine does with this clause →

Examples

the commercial register	das Handelsregister
a fact requiring registration	eine eintragungspflichtige Tatsache
entered and published	eingetragen und bekanntgemacht
the entry has constitutive effect	die Eintragung wirkt konstitutiv