Do you need assistance with commercial agency law? Commercial agents are employed in every industry and sales structure. Every company relies on the optimal marketing of its products or services. The legal status of commercial agents and their rights and obligations are regulated both by law and extensive case law. Globalization, particularly in the digital environment, is increasing the scope and demands in the relationship between companies and commercial agents. If a conflict arises between the business owner and the commercial agent, legal advice is essential. Do you want to terminate your commercial agent's contract? Is the commercial agent demanding repayment of unearned commission advances? Or do you, as the commercial agent, want to assert claims against the business owner yourself?
Contact a lawyer specializing in commercial law now. We can help you assert your claims!
Under German commercial law, a commercial agent is an independent trader who is constantly engaged in brokering or concluding business transactions for another business. For this reason, they may also be referred to as a brokering or concluding agent.
The commercial agent does not only act in individual cases, but is expected to conclude or broker an indefinite number of transactions for the entrepreneur.
From a legal perspective, the commercial agency contract is a long-term business management relationship between the commercial agent and the entrepreneur.
In contrast to wholesalers, retailers or commercial brokers, the commercial agent is integrated into a company's sales and distribution system on a contractual basis.
As soon as he concludes a transaction in his own name, it is a commission transaction.
Sales representatives can work for one or more companies.
We then speak of single-company and multi-company representatives.
In most cases, the commercial agent is himself a merchant according to the Commercial Code (German Commercial Code)
This qualification is not mandatory. If the commercial agent is not a merchant within the meaning of the law, the commercial agent regulations of the German Commercial Code (HGB) apply.
Exceptions only apply to sales representatives who explicitly work part-time.
Commission claims
A claim to commission can arise in a variety of ways:
Brokered transactions and referred customers
Transactions concluded during the contract term with the assistance of the commercial agent. In principle, follow-up transactions with customers acquired by the commercial agent are also subject to commission.
District representative
A commission claim also arises for transactions within the protected area in which the district representative was not involved. The obligation to pay commission also exists if the commercial agent is granted specific customer protection.
Overhang commission
By law, the commercial agent is also entitled to the so-called overhang commission for post-contractual transactions.
Amount of commission
The amount of commission is determined by the commercial agency agreement. If the amount has been contractually fixed, the statutory provision of Section 87b Paragraph 2 of the German Commercial Code (HGB), which refers to the "customary rate," applies.
The book excerpt
As part of the book extract, the entrepreneur is required to provide the information that the commercial agent needs to calculate his commission claim.
The entrepreneur must only provide the book extract upon request
The book extract must show all relevant business details in a clear, concise and complete manner.
As soon as the entrepreneur refuses to provide the book extract, the commercial agent can file a staged action.
Disputes often arise between the entrepreneur and the commercial agent regarding the question of whether the commercial agent is allowed to sell certain products of a competitor. In principle, a commercial agent must refrain from any action during the term of the contract that could cause damage to the interests of the principal.
He may not carry out any competing activity unless the entrepreneur has expressly permitted such activity.
The multiple agent is often contractually granted a specifically defined sales activity in the commercial agency contract.
If there is no contractual permission, the legal situation generally applies: it does not explicitly regulate a non-competition clause during the contract period, but case law has derived a non-competition clause in good faith.
A lawyer can examine the scope of contractual and post-contractual non-competition clauses for you, conducting a specific risk assessment, and draft non-competition agreements with a sustainable sanction system for your company.
Termination of commercial agency contract
Especially in the context of the termination of a commercial agency contract, conflicts often arise between the commercial agent and the entrepreneur.
Both contracting parties may terminate the commercial agency agreement either regularly or extraordinarily.
Claim for compensation after termination
Termination by the commercial agent
The commercial agent’s claim for compensation against the principal is generally void if the commercial agent has terminated the contract himself.
However, the German Commercial Code (HGB) contains an exception, according to which the right to compensation remains valid if the commercial agent's termination was a justified reaction to the principal's conduct. If this is the case, the post-contractual compensation claim may remain valid.
The commercial agent must assert his or her claim within 12 months. The maximum amount is usually the average annual commission.
Termination by the entrepreneur
The right to compensation is void if the termination was for good cause due to culpable conduct on the part of the commercial agent.
If the parties on both sides cannot reach an agreement on the presentation of a good cause for termination, the commercial agent's lawyer will usually take the dispute to court.
termination agreement
Many legal disputes can be avoided through a joint termination agreement.
The consequences of termination of the commercial agency agreement are clearly regulated.
Many termination agreements contain legal pitfalls for commercial agents, which is why the contract should be carefully reviewed by a lawyer.
As a lawyer, I support you in asserting your claims under sales and commercial agency law. Do you have disputes concerning an outstanding commission? I can help you review commission claims under commercial agency law and the company's counterclaims, as well as draft and negotiate commercial agency agreements. I also represent both companies and commercial agents in disputes concerning commission, post-contractual commission claims, overhang commissions, and compensation claims. and claims for book extracts. I also assist you in the termination of a commercial agency agreement, helping you draft termination clauses and review the grounds for termination. In the event of termination disputes, I will provide you with dedicated support and, if necessary, prepare an expert opinion on specific issues relating to the termination of the commercial agency agreement.
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