Clear rules for successful cooperation
Commercial agents initiate business in the name of and on behalf of businesses and companies and conclude transactions for them on a commission basis. Here the representatives are in arenot in a dependent employment relationship with the commissioning company, but work as a independent traders on their own responsibility. So that these “free” cooperation can be carried out fairly and equally, the § 84 ff HGB comprehensive legal regulations for the work of and with commercial agents and, incidentally, also with insurance brokers.
Of course, as always, these laws only represent a framework for human action, which of course leaves creative freedom and which should not be underestimated by companies and sales representatives alike. Thus, despite existing legal regulations, it is advisable to draw up a written contract that regulates the basic features of a cooperation. This so-called agency agreement should cover, among other things, topics such as remuneration and commissions as well as the non-competition cla use and a predefined area of work. The more carefully the contract for cooperation is drafted, the lower the potential for disputes that can be expected.
We will be pleased to advise you comprehensively on the subject of commercial agents and commercial agent law and will also review existing contracts.
Rights & duties of a commercial agent
- A commercial agent must make efforts to initiate and conclude business in the interest of the company.
- Entitlement to reimbursement of expenses incurred in the course of daily business, if agreed.
- The commercial agent agrees to agreed territorial protection without exception.
- Every commercial agent is a trader and therefore automatically a member of the IHK.
- One may not act for the competition in the sense of the prohibition of competition .
- The commercial agent is contractually entitled to a commission.
- Each representative is entitled to a book extract.
- After termination of the contract the commercial agent has a claim for compensation / special remuneration
Rights & obligations of the entrepreneur / the company
- The company is obliged to provide the commercial agent with all information and documents necessary for a successful activity.
- The company is obliged to comply with the commercial agent’s claim for a book statement.
- The principal or the company is authorised to give instructions to the commercial agent, although this must not undermine the agent’s legal independence.
- In contrast to a classic employee relationship, entrepreneurs are allowed to terminate a commercial agent without giving reasons.
How we support you on the subject of commercial agents and distribution law:
- Individual preparation and drafting of contracts:
Franchise agreements, commercial agency agreements, brokerage agreements, commission agreements, agency agreements - Design of general terms and conditions (AGB’s)
- Advice and support on the subject Commercial agency law
- Representation in disputes concerning commercial agent compensation (§ 89b HGB) and commissions
- Defence against and examination of unjustified claims
- Advice on the termination of commercial agents
- Advice on non-competition clauses and contractual penalties
- Antitrust law advice
- Drafting of supply contracts, non-disclosure agreements
- Advice on insurance
- Assertion of claims for damages (primary & secondary)
- Reversal of commercial contracts
- Advice on the topic of the Transparency Ordinance and IDD (Insurance Distribution Directive)
- Handling of canceled contracts and agreements
- Advice and representation in legal disputes, also internationally
Helpful articles on the subject of commercial agency law:
- Financial distribution without a licence and without supervision?
- Intermediary and distribution law: free samples and forms are no liability-free favours
- Federal Court of Justice: advisors are personally liable for immoral damage to investors
- Comments on the liability of the insurance broker
- Insurance brokers: So-called fee-based advisors as the gravediggers of the intermediary profession
