TURGERLEGAL - Commercial Law
Lawyer for assistance in commercial agency law in Berlin
Your competent lawyer in commercial law
Commercial agency law
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!
The commercial agent and his legal position
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.
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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.
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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.
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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.
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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)
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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.
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Exceptions only apply to sales representatives who explicitly work part-time.
Commission claims
A claim to commission can arise in a variety of ways:
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Brokered transactions and referred customers
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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
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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
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By law, the commercial agent is also entitled to the so-called overhang commission for post-contractual transactions.
Amount of commission
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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.
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The entrepreneur must only provide the book extract upon request
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The book extract must show all relevant business details in a clear, concise and complete manner.
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As soon as the entrepreneur refuses to provide the book extract, the commercial agent can file a staged action.
Do you have a challenge in the area of commercial agency law? Trust my expertise
Non-competition clause
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.
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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.
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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.
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Both contracting parties may terminate the commercial agency agreement either regularly or extraordinarily.
Claim for compensation after termination
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Termination by the commercial agent
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The commercial agent’s claim for compensation against the principal is generally void if the commercial agent has terminated the contract himself.
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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.
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The commercial agent must assert his or her claim within 12 months. The maximum amount is usually the average annual commission.
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Termination by the entrepreneur
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The right to compensation is void if the termination was for good cause due to culpable conduct on the part of the commercial agent.
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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.
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termination agreement
Many legal disputes can be avoided through a joint termination agreement.
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The consequences of termination of the commercial agency agreement are clearly regulated.
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Many termination agreements contain legal pitfalls for commercial agents, which is why the contract should be carefully reviewed by a lawyer.
Your competent lawyer for commercial agency law
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.
Do you need help asserting your claims and rights? Contact me now for comprehensive advice on all aspects of commercial agency law!
A commercial agent is an independent trader who regularly brokers or concludes business transactions for other entrepreneurs (brokerage or closing agent). In doing so, they are expected to conclude or broker an indefinite number of transactions for the entrepreneur.
During the term of the contract, the commercial agent is entitled to commission. Upon termination of the commercial agency agreement, the commercial agent is entitled to compensation under the German Commercial Code (HGB). This compensation claim cannot be excluded or limited in advance.
While safeguarding the company's interests, the commercial agent must actively seek to broker and conclude business deals. They also have extensive information obligations toward the principal. They are subject to a non-competition clause during the term of the contract.
The amount of the commission or commission rate is generally agreed upon in the commercial agency agreement. If this is not the case, the statutory provision of Section 87b Paragraph 2 of the German Commercial Code (HGB) applies, which refers to the "customary rate." Depending on the industry and company, commission rates of up to 10 per cent can be agreed upon.
The commercial agent's claims following the termination of a commercial agency agreement vary depending on the type of termination and which party terminated the contract. If the commercial agent terminated the contract themselves, a claim for compensation is only possible in exceptional cases.
If the commercial agent terminated the contract themselves, they are entitled to compensation if the principal gave cause for termination of the commercial agency agreement. If the principal terminates the contract, the commercial agent is entitled to compensation, unless there was a good cause due to negligent conduct.
To calculate the compensation claim, a distinction must be made between two reference values: The first step involves calculating the gross compensation, which is then limited to the maximum amount in the second step. To get the best possible outcome for you, it's advisable to consult a lawyer.
A one-year limitation period must be observed for asserting the compensation claim. The claim can only be asserted within one year of the termination of the commercial agency agreement. Initially, a written assertion to the principal is sufficient.
The book extract serves the commercial agent to monitor his commission claims. In addition to preparing payment claims, the book extract can also be used as leverage against the business owner, especially if the owner wishes to pay a low commission.
The staged action under the Code of Civil Procedure (ZPO) is particularly important in distribution and commercial law: The first stage requires the issuance of a book extract. The second stage demands payment of the commission, which is to be calculated after the issuance of the book extract.
