The classic commission claim of the commercial agent

The commercial agent is entitled to a commission claim pursuant to Section 87 (1) of the German Commercial Code (HGB) if a transaction is concluded that is attributable to their activities as a commercial agent. The claim typically arises upon execution of the transaction. However, the contracting parties have the option of specifying the point in time at which the claim arises differently. For example, the claim may only arise upon payment by the customer; in this case, however, the commercial agent must be paid an advance commission as soon as the goods have been delivered by the company. The commission claim expires pursuant to Section 87a (2) of the German Commercial Code (HGB) if the customer fails to pay, unless the entrepreneur has attempted to realize the claims through legal action or enforcement.

• Continuation of the commission claim despite different execution of the transaction

If the transaction is not carried out in whole or in part as agreed by the commercial agent, the right to commission remains in principle.

• Practical design of the commercial agency contract

The commercial agency agreement should clearly stipulate the basis on which the commission is calculated. A fixed commission is generally permissible, but is limited in time and only for specific reasons.

• Common commission calculation

Typically, a percentage of the brokered sales is agreed upon, based on the customer's invoice amount. This also includes sales tax, discounts, incidental costs, freight, and packaging.

• Consideration of additional costs and discounts

Incidental costs may only be deducted when calculating the commission if this has been contractually agreed upon or if the incidental costs are invoiced separately to the customer. Discounts only reduce the commission if they were promised to the customer in advance. Subsequent discounts granted to the customer, however, generally do not reduce the commission. Unless otherwise agreed, the commission is also to be paid from the VAT amount.