Most conflicts in commercial agency law arise in three areas: the calculation of commissions, the book extract, and the compensation claim after the contract ends.
Most conflicts in commercial agency law arise in three areas: the calculation of commissions, the book extract, and the compensation claim after the contract ends.
Clience.Legal represents both sides of this relationship — companies that want to fend off disproportionate claims, as well as commercial agents who want to enforce their legitimate claims.
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Concluding and performing a commercial agency agreement brings typical challenges: invalid or disadvantageous contractual provisions, complex calculations and nerve-wracking negotiations. Commercial agents often struggle to even identify their legitimate claims, let alone enforce them, while companies worry about having to meet disproportionate demands.
These situations lead to uncertainty and conflicts that can permanently strain the relationship between both parties and end in lengthy litigation. Yet most of this could be avoided in the contract — through clear commission provisions, clean notice periods and unambiguous rules on non-compete clauses.
The HGB sets the framework: § 87 HGB governs when the commission claim arises, § 87(3) HGB commission on transactions that were not executed, § 89 HGB the notice periods, § 89b HGB the compensation claim and § 90a HGB the post-contractual non-compete clause. Contractual deviations are only effective within the limits permitted by law.
The commission claim generally arises upon execution of the brokered transaction. Disputes typically arise where transactions are only partially executed, canceled or handled through other channels. § 87(3) HGB governs the conditions under which a claim may exist even for transactions that were not executed.
The most effective protection is transparency: comprehensible commission statements, documented allocation of customers and territories, and clear rules on subsequent commissions and the handling of reversed transactions. Where these fundamentals are lacking, the book extract (Buchauszug) regularly comes into play — and with it a procedure that costs both sides time and money.
After the contractual relationship ends, the commercial agent may be entitled to a compensation claim (§ 89b HGB). It is intended to compensate for the benefits the company continues to derive, even after the contract has ended, from the customer base built up by the commercial agent. Its calculation is the most common point of dispute of all.
For companies, this means: the compensation should already be calculable when the contract is concluded. For commercial agents, it means: without a reliable data basis, the claim can hardly be quantified. We carry out the calculation, negotiate on this basis and enforce the claim — or fend off inflated demands.
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You work with several commercial agents and want uniform, robust contracts.
You want to know which commissions and what compensation you are actually entitled to.
A termination is imminent — and with it the question of the compensation claim.
Commission statements are unclear; a book extract is demanded or refused.
Sales structures across national borders require coordinated contracts.
Drafting and review with clear provisions on commissions, termination and non-competition.
Review of commission statements, subsequent commissions and clawbacks.
Enforcing and fending off claims for a book extract and information.
Calculation, negotiation and enforcement of compensation after the contract ends.
Ordinary and extraordinary termination, notice periods and their consequences.
Drafting post-contractual non-compete clauses, including compensation for the restraint period.
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Analysis of your situation with clear recommendations.
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In principle, upon execution of the brokered transaction. § 87 HGB governs when the claim arises, § 87(3) HGB the cases in which a claim may exist even for transactions that were not executed.
The book extract is a structured compilation of all commission-relevant transactions. It serves to verify the commission statement when there are doubts about its completeness or accuracy.
The compensation claim under § 89b HGB is based on the benefits that remain for the company after the end of the contract from the customer base built up. Calculating the compensation requires reliable data on customers, sales, and commissions — we determine and negotiate them.
The statutory notice periods are determined by § 89 of the German Commercial Code and are based on the duration of the contractual relationship. Contractual deviations are only valid within the legally permitted limits.
A post-contractual non-compete clause is possible under the conditions of § 90a HGB. It must be in writing, is limited in time and gives rise to appropriate compensation.
Attorney, Certified Specialist in Commercial and Corporate Law
Darius Dubiel is a Certified Specialist in Commercial and Corporate Law with a particular focus on compliance advisory, restructuring, insolvency law, digitalization and the use of artificial intelligence (AI) in a corporate context. He specializes in corporate law, legal support for coaches and questions of insolvency and restructuring law. Another focus is representing coaches and educational providers in proceedings concerning the Distance Learning Protection Act (FernUSG), ZFU approval and refund claims by customers.
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