Hans Bayer · 1963
Hans Bayer’s journal article examines legal organization as a condition of survival and development for medium-sized firms shaped by entrepreneurial personalities. Its three sections address succession, dynamic management, and interfirm rationalization. Against both legal determinism and confidence in personality alone, Bayer argues that contractual arrangements can enable—or obstruct—the conduct required to sustain an independent enterprise. Drawing on earlier scholarship, company agreements, and business examples, he rejects any fixed correspondence between firm size, activity, and legal form. His principal concern is the individual design of the company agreement within the statutory framework.
Die konkreten Verhältnisse sind maßgebend für die wirtschaftlich und gesellschaftspolitisch entsprechende Wahl der Rechtsform.
English translation: The concrete circumstances determine the choice of legal form appropriate in economic and sociopolitical terms.
This situational approach makes legal form an instrument for mediating characteristic entrepreneurial tensions rather than a classification imposed from outside. Bayer distinguishes difficulties originating in economic policy from internal tensions arising through entrepreneurial attitudes and economic development. Cooperation between firms likewise requires appropriate legal foundations: exhortations to rationalize jointly are insufficient without suitable company structures and competition and tax rules. Cooperation should secure competitive capacity, not abolish competition.
The first and longest section treats succession through the opposition between rigid traditionalism and narrowly calculating profit-seeking. Both can subordinate the enterprise’s future to immediate family interests. Bayer’s alternative, Traditionsverbundenheit, combines commitment to the firm’s historical continuity with willingness to adapt. Restricting management to biological descendants or distributing authority equally among family branches can frustrate this combination. Two jute factories illustrate the stakes: disagreement between equal managing partners delayed one factory’s conversion until collapse, whereas unified leadership enabled the other to diversify successfully.
Succession therefore requires more than naming an heir. Candidates must be selected for competence, trained, introduced early, and entrusted with independent responsibilities before the incumbent’s departure. Family ownership need not entail exclusively family management:
Aber hoher Vermögensanteil und Führerqualität müssen keineswegs zusammenfallen.
English translation: But a large ownership stake and leadership ability need by no means coincide.
Bayer separates the preservation of family capital from hereditary entitlement to command. Agreements restricting transfers, withdrawals, and estate settlements can protect the capital base against fragmentation. Inheritance waivers and continuation clauses similarly place the firm’s viability before heirs’ immediate claims. His comparison with agricultural inheritance arrangements—including the Reichserbhofgesetz and Tyrolean farm law—reveals the priority he assigns to preserving the productive unit. Yet preservation must not become immobilization: corporate forms may ease succession, and a personally shaped enterprise need not legally be a partnership. Hybrid arrangements such as the GmbH & Co. can limit liability and facilitate professional leadership, although Bayer also asks whether risk limitation sometimes expresses declining entrepreneurial boldness.
The second section distinguishes dynamic management from both static caution and erratic opportunism. Static entrepreneurs defend current income while postponing development; erratic entrepreneurs chase successive profit opportunities without consolidating their achievements. Both privilege the short term. Bayer’s dynamic entrepreneur maintains a recognizable developmental direction while adapting products, investing, and carrying pioneering initiatives through to sustained operation.
Weit mehr mittlere personengeprägte Unternehmen sind an Investitionsmangel zugrunde gegangen als an Fehlinvestitionen.
English translation: Far more medium-sized, personally shaped enterprises have perished through insufficient investment than through mistaken investments.
This pointed claim supports Bayer’s preference for contracts that locate final decision-making authority in one person without excluding delegated technical and commercial responsibilities. Equal management rights and elaborate arbitration procedures can institutionalize delay precisely when technological change requires action. Advisory boards serve a different function when they provide informed scrutiny without paralyzing management. They can check impulsive investment, supply external expertise, and improve banks’ knowledge of the firm. Recruiting outsiders broadens managerial capacity, though salaries and reluctance to admit nonfamily partners impose practical limits. Bayer thus advocates decisiveness with counsel, not an entrepreneur expected to master every specialty.
The final section extends contractual design to cooperation among independent firms. WEBO illustrates the integration of production specialization, a newly developed machine range, common branding, and joint sales. Unionmatex combines eight specialized textile-machinery manufacturers to supply complete plants abroad while retaining separate business activities. Retail purchasing cooperatives coordinate procurement, advertising, advice, and supplier specialization. A Swiss footwear cooperative organizes manufacturer–retailer parity and reciprocal respect for each group’s sphere of activity. By contrast, the Dutch textile holding formed in 1962 shows cooperation approaching merger through exchanged shareholdings and consolidated governance.
These cases establish that economic coordination depends on institutions suited to the participating firms, as well as on trust and entrepreneurial conduct.
Ohne entsprechende Grundhaltung der Unternehmer freilich ist alles Vertragswerk vergeblich.
English translation: Without an appropriate fundamental attitude on the part of the entrepreneurs, however, all contractual arrangements are futile.
The article’s lasting conceptual contribution is to connect ownership, succession, managerial authority, and interfirm cooperation within one account of enterprise continuity. Legal arrangements neither substitute for personality nor merely formalize it: they shape its capacity to act. Bayer consequently ends by presenting recourse to experienced lawyers and economic advisers as a means of concentrating entrepreneurial energy on its distinctive tasks.
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