Commercial agency law

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The law of commercial agents in Sections 84 to 92 of the Commercial Code (HGB) regulates the legal relationships of the commercial status of commercial agents through special provisions. The content is predominantly protective provisions for commercial agents, comparable to the intention of tenancy law to protect the economically weaker market participants against the predominantly stronger contractual partner .

Regulation content

In the seventh section of the first book of the German Commercial Code (HGB), the individual sections of the Commercial Agents Act essentially structure the provisions on the provision of samples free of charge , payment for collection , inspection of the books by the representative at the provider, special rights and obligations of the implementation as well as the compensation claim of the representative according to the amount and due date (here: the commission ) as well as the termination and compensation regulations in the event of unilateral termination of the representation.

Essential duties of the commercial agent

  • § 86 HGB regulates the effort and notification obligation. The commercial agentmust endeavor tomediate or conclude transactions ,to informthe represented entrepreneur immediately of his transactions and to provide the necessary information (reporting obligation) and to fulfill the obligations of a prudent businessman. The interests of the company must be taken into account. This includes advising customers, correct naming of prices and conditions of the provider andbehavior that is impeccableunder competition law .
  • Section 90 of the German Commercial Code determines the commercial agent's duty of confidentiality.
  • Obligation to abstain from competition: A non-competition clause is not expressly listed in the law, but results from the general duty of the commercial agent to safeguard interests and is to be interpreted strictly in accordance with established case law . The representative must not damage the company by simultaneously representing the competition. Non-compete obligations are often formulated in more detail in the contract. Section 90a HGB sets certain requirements for the agreement of a post-contractual competition agreement, namely written form , time limit to a maximum of two years after the termination of the commercial agent relationship, local limitation to the district or customer group previously assigned to the commercial agent, objective limitation to objects or the area which the agent had to endeavor to mediate during the term of the contract and payment of compensation for the duration of the restraint of competition. According to the Federal Court of Justice, Section 90a of the German Commercial Code (HGB) applies to competition agreements that are agreed after the formal termination of the commercial agency contract, but the essential elements of which the parties have already agreed on during the term of the commercial agency contract.

Essential Rights of the Commercial Agent

  • Section 86a of the German Commercial Code regulates the commercial agent's right to documents such as samples , drawings , price lists , printed advertising materials and general terms and conditionsfor representation, as well as the obligation of the provider to inform the agent immediately if he is likely to be able to conclude transactions only to a much lesser extent than mediated want.
  • Section 87 of the German Commercial Code regulates the commercial agent's right to commission for all transactions concluded during the contractual relationship that can be traced back to his activity. The commercial agent's claim to commission arises subject to the condition precedent already with the conclusion of the contract between the provider and his customer. At this point in time, the commission claim has already been determined basedon the reason and the calculation rate. Only when it is finally clear that the customer will not pay will the commission be forfeited. Sample commercial agency agreements of the industry and trading companies refuse the commission until the customer has paid in full. Complaints processingin the event of poor delivery byhis provider and the consequence of payment delays are in this way often passed on to the economically weaker commercial agent, so that the provider has the advantage of reducing costs, for example. B. also saves the commission due to insufficient skilled workers or cheaper material. The commercial agent should get the customer to pay at his own expense (i.e. without being able to take care of new business during this time). It should be noted here that such a regulation unfairly involves the commercial agent in the provision of services by the company, although he has no influence whatsoever on it. The claim to commission is also not lost if the provider does not deliver or delivers differently than agreed, delivers poorly or delivers to third parties, so that the customer for his part delays or pays reduced or the provider himself renegotiates the delivery agreements with the customer who has already been won. This legal opinion is supported by the constant jurisprudence and highest court rulings of the BGH: Circumstances for which the provider is responsible are for example:
  • Delayed delivery,
  • Bad delivery and returns,
  • Customer's request for cancellation or
  • Self-supply and labor risk.
In the construction, textile and media sectors, even small defects often result in customers not paying or paying with delay. This constellation can quickly become a threat to the existence of the commercial agent, while the customer and the provider may enter into legal disputes lasting for years . Only if it is certain that the customer will not pay at all (insolvent) will the commission be forfeited and the advance payment must be repaid by the commercial agent.
It is also stipulated that commission can be claimed for transactions of the same type. Many providers circumvent this customer protection by fully regulating the duty of the representative to cooperate. According to the highest court rulings, even a minor involvement of the commercial agent triggers commission. This is the case even if no special involvement of the representative in the sales talk is to be expected during a joint visit with the management. If the company is already well-known or has almost the entire market in the customer database (manageable capital goods markets ), this prevents commissions from being due for customer contacts that have already been developed. Commissions are then only due arbitrarily, as the provider can either prove that he already knew the customer, had a similar contact with him or the representative did not negotiate a detail of the contract himself.
  • Section 87a of the German Commercial Code ( HGB) regulates the due date of commission and advance payment , at the latest when the business is executed by the entrepreneur. The entrepreneur has to pay at least a reasonable advance payment, which is due no later than the last day of the following month.
  • Section 87b of the German Commercial Code (HGB) regulates the entitlement to district commissions and the sharing of the commission when several company representatives are involved, as well as the amount of the commission if this is not regulated (the customary commission then applies here). Even the deduction of discounts, freight, packaging, customs and taxes may not reduce the commission. The automatic follow-up commission is also regulated here (in sentence 3). Especially if no written commercialagencycontracts are concluded and a so-called freelance employee sells inadequately secured, the protective nature of the HGB applies here.
  • Section 87c HGB regulates the representative's right to a book excerpt . If necessary, he can even look at the books of the provider he works for. He also has a comprehensive right to information about the circumstances that affect his billing. Here it is also regulated that the commission settlement must be made immediately, at the latest by the end of the next month.
  • Section 87d of the German Commercial Code (HGB) stipulates that the representative must be reimbursed for expenses incurred in his business operations, if this is customary in the industry. But this can be done in an individual contract z. B. for market research, trade fair participation, increased travel and representation costs for A-customers or office costs can be agreed. A problem arises, however, from the fact that planning, evaluation and training work by the HV is sometimes common, especially in the capital goods industry, but the corresponding separate remuneration is assigned by the manufacturer to the self-interest of the HV (keyword "customer care"), so that a fixed Remuneration for these services that are not mediated in themselves can be refused with the reference that the separate payment is not customary in the industry. Here the AGM has the burden of proof and would have to prove that a majority of competitors give their AGM such special services. B. remunerated as a fixed amount. A look at the fee schedule for architects and engineers (HOAI) may be useful as a guide for calculating such preparatory work. It should be noted that this must not result in any organizational integration of the self-employed commercial agent (risk of bogus self-employment ).
  • § 89 and § 89a HGB regulate the notice periods and conditions of the commercial agency contract.
  • § 89b HGB regulates the compensation claim of the commercial agent . If the commercial agent is regularly terminated by the provider, he is entitled to compensation if the provider derives significant advantages from his previous activity.
  • Section 90a of the German Commercial Code limits the maximum duration of a non- compete clause to two years after the end of the cooperation. In addition, this may only extend to the district or customer group assigned to the commercial agent and only to the items with regard to which the commercial agent had to endeavor to broker or conclude business for the entrepreneur. The provider is also obliged to pay the commercial agent appropriate compensation for the duration of the restraint of competition.
  • Section 91a of the German Commercial Code regulates the power of attorney for the unauthorized representative ( brokerage agent ) in such a way that transactions are still considered valid if the entrepreneur does not immediately reject the transaction after learning of the content of the transaction.
  • Section 92 HGB regulates certain exceptions to the above standards for insurance and building society representatives as well as for part-time workers (under Section 92b HGB) and for EU agencies (under Section 92c HGB)

Powers of representation

The differently designed powers of attorney are reflected in a uniform definition of the task description of a commercial agent:

Simple matrix representation of the possible representation agreements according to HGB § 84 ff. In Germany.

As a rule, if the manufacturer or importer is present on site, medium-level competence and responsibility agreements are concluded. Often the entrepreneur himself is not aware of the variety of possibilities, so that resorting to so-called “model contracts” is highly negligent.

Mediation agent

Obtaining requests to submit an offer from the market ( customer inquiries ) with the right of the provider to refuse these orders with loss of commission for the agent and to conclude other contracts with the customer that are not commissionable for the agent. The commercial agent may not conclude legally valid, i.e. not make a declaration of intent for the provider. The customer protection acc. Section 87 sentence 1 of the German Commercial Code (HGB) is often circumvented by regulating the obligation to cooperate in a particularly comprehensive manner. Many companies submit such contracts to their "independent" sales representatives in sample contracts from the Chamber of Commerce and Industry or the provider's legal advisor.

Final representative

Submission of legally valid declarations of intent for the provider, with the result that the provider can only refuse to fulfill the contract in exceptional cases, e.g. B. in the case of insufficient solvency of the brokered customer or delivery bottlenecks that were known to the representative in good time. However, since the representative does not enjoy district protection here, the provider can conclude similar or other contracts as well as follow-up orders with the customer at any time with loss of commission for the representative himself or through third parties. This form of contract is of a more theoretical nature and of rather subordinate importance in practical life.

District representative as mediation representative

Obtaining requests to submit an offer from the market ( customer inquiries ) with the right of the representative to commission, to negotiate himself or through third parties with customers in the specific district protection . In this way, the commercial agent receives a position that is economically favorable for him, since he receives commission for all direct and indirect orders from his district, regardless of whether he was involved in the order or not. However, the entrepreneur retains the right to offer orders such as B. to refuse delivery bottlenecks or to renegotiate the conditions. In practice, transfer fees are paid for well-established districts, the amount of which is based on the amount that was paid to the predecessor in the district as compensation in accordance with Section 89 b HGB. In return, the new customers recruited by the previous agent are contractually guaranteed to the successor who has to pay the transfer fee as his new customer (so-called new customer clauses).

District representative as final representative

Obtaining requests for the submission of an offer from the market and submission of legally valid declarations of intent for the provider without being able to negotiate his right with customers in the specific area. This commercial agent therefore enjoys both territorial protection and the privilege of being able to make declarations of intent (commitments) to the customer that are valid for the provider. These commercial agencies are often legal entities with their own, less well-off sub-agents.

A supplier will choose this constellation if the market does not have enough qualified commercial agents who are ready, for example, to open up a larger area at their own expense without corresponding collateral, or if a foreign entrepreneur with a commercial agent relies on the completely new development of a market that is unknown to him and the commercial agent invests considerable resources in advertising and market research for the distribution of his manufacturer or importer. Sometimes ongoing fees are also agreed for the number of potential customers (industry participants) in the representation area (e.g. with software providers). In this case, the commercial agent, as a legal person, is the actual provider and the manufacturer provides the product (e.g. software), for example, without any additional purchase costs . Even highly qualified representatives with an expert function or representatives who market their own patents rarely allow the provider to take away the power of attorney. The provider may also be active as a seller himself, but has to pay the agent the commission for every business in his area. In such cases, the commissions can also vary enormously upwards.

This agreement is rather rare in the regular sales business and it is imperative that the commercial agent has leased or acquired his area and that the provider is able to deliver at any time. Often such districts, similar to the district representative as an intermediary agent, are traded as an intangible company value and accounted for separately in the business valuation of the commercial agency . Usually, at least the market research and image advertising are carried out by the manufacturer or importer. This representative also mostly bears such costs himself. Such a commercial agent will forbid the manufacturer or importer (possibly even without sufficient market knowledge) to come into contact with customers himself or through third parties.

Importance of a neutral contract

Commercial agency contracts require even more careful planning than service contracts , since here two independent entrepreneurs face each other. Sometimes conflicting interests under the protective provisions of the legislature for one of the two parties that the commercial agent must observe. Often, however, the SME parties that have reached an agreement are not even aware that they have concluded a commercial agency contract because they either do not choose a written form or assume that simple freelance work does not require any special regulation. In fact, however, Section 84 (2) HGB regulates :

"Anyone who, without being self-employed in the sense of paragraph 1, is constantly entrusted with mediating business for an entrepreneur or concluding on his behalf is considered an employee."

The legislature simply does not know any working agreements that are not regulated either in the special law of obligations ( § 433 to § 853 BGB with the provisions for employees under § § 611  ff. BGB) or in commercial law as a special area of private ( civil) law ( here according to § § 84  ff. HGB).

Sample texts from interest groups in industry , which have no interest in broad protective provisions of commercial agents, lay down the legal options for structuring the contract i. d. R. to the detriment of the representative. It is by no means that a commercial agent is the most convenient solution for a supplier. The popular belief that by employing sales representatives, providers can conduct their business without risk and only have to pay when the customer pays, for example, is incorrect. If contracts are concluded that are intended to exclude commercial agent rights, it can usually be assumed that clauses are immoral and therefore invalid. In these cases, the agreement that is considered to be customary in the market regularly comes into effect. The practical result of recommendations by the IHKs is regularly based on the interests of the industrial companies that support them and not on the spirit of the commercial agency law created by the legislature as a protective right.

The phenomenon is also known in the housing market, in which model contracts of the association “Grund und Boden” go to the edge of the legally justifiable imposition for the tenant and the “ tenant associations ” try to publish compensatory texts in line with the tenant protection envisaged by the legislator. Of agents who depend usually on the job readiness of the housing industry, because even be due almost exclusively used just such "friendly landlord" designs, as well as of CCIs often "vendor-friendly" agency agreements are published.

Vendor interests

The statutory commission obligation is circumvented in a practical way, especially for attractive capital goods customers, in such a way that the manufacturer accepts the orders proposed by the agent once and then renegotiates other services with his own resources (e.g. call center , secretary, managing director). Since these are no longer so-called similar transactions, no commission has to be paid anymore - the representative should only win new customers and is used, for example, for the acquisition of analysis tools and the manufacturer then speaks to the customers won in this way about rationalization investments that are not in the agent's contract. In the insurance industry, however, such representation regulations are the rule and the representatives in need of protection are z. B. burdened by the fact that they are charged high fixed costs for office cost sharing, training or promotional gifts as well as excessive cancellation reserves (see e.g. AWD ).

Representative interests

Even the commercial agent can try to maximize his (time) gain through moderate efforts, especially in the case of advantageous contracts with territorial protection. Since all business in the protected area is provisional, regardless of whether and how intensively the customers are addressed, some district representatives rarely visit customers to acquire follow-up orders, but are instead interested in new customers in order to participate in numerous follow-up orders. Basically, this also corresponds to the spirit of the Commercial Agents Act, which does not provide for support tasks and service work, but makes order acquisition a central activity.

In practice, however, follow-up orders can often only be won if the customer is also looked after by his representative and advised on problems. A fair balance of interests between the agent and the provider must take place here, in such a way that trained office staff via call centers or service technicians in the field ensure customer care. Nevertheless, it can be regularly observed that district representatives also perform these tasks and charge the provider so-called “flat-rate fees”. This is fundamentally a problem under labor law and in fact leads to additional employment contracts subject to social insurance between the provider and representative, even without the knowledge of the parties involved, provided that these services are more than minor and not only of an administrative nature (e.g. pure server operating costs for a knowledge- Representative's database).

Web links

literature

Individual evidence

  1. ↑ BGH, judgment of October 25, 2012, Az .: VII ZR 56/11
  2. ^ BGH, judgment of July 11, 1960, BB 1960, 957
  3. ^ BGH, judgment of October 11, 1990, DB 1990, 2592
  4. ^ BGH, judgment of December 1, 1960, BB 1961, 147; from October 11, 1990, DB 1990, 2592
  5. ^ BGH, judgment of July 13, 1959, BB 1959, 864
  6. ^ BAG, judgment of January 22, 1971, DB 1971, 779