Commercial
Lawyer
Germany

The commercial agent plays a decisive role in entrepreneurial success and the marketing of the goods and services offered by the company. In addition to authorised dealers, franchise companies and commission agents, commercial agents are an integral part of economic distribution structures. This characteristic of the commercial agent as the central figure in the distribution of a company is accompanied by many rights and obligations on both sides. For this reason, some essential legal aspects must be considered when drafting a commercial agency contract. Our commercial law legal team reviews, drafts, and revises your commercial agency contracts and ensures that the rights and obligations of both parties to the agreement are clearly and comprehensibly formulated.

The commercial agent’s first and foremost duty is to mediate and conclude transactions in the company’s interests actively. In addition, they have to fulfil far-reaching responsibilities to inform the entrepreneur and must comply with their non-competition clause. This can be maintained on a contractual basis even after the termination of the agency agreement. In return, the entrepreneur has an obligation to instruct the commercial agent and provide them with the materials and documents necessary to perform their commercial agency duties. During the contract term, the commercial agent is also entitled to commission payment from the principal and, after termination, to compensation per § 89 b HGB.

Parties should discuss the following contractual elements in any case in the commercial agency contract:

• Authorisation of the entrepreneur or third parties to independently market the goods in the contract territory,
• Commercial agent’s rights of use of industrial property rights,
• Confidentiality obligations,
• Contract territory, regional limitation,
• Credit assessment,
• Non-competition clause, in particular, regulation of the post-contractual,
• Settlement of commission and compensation claims,
• Termination of the contract (duration, termination),
• The obligation of secrecy,

In addition, the classic sales structures, such as distribution through sales representatives, are also subject to the changes brought about by globalisation and digitalisation. The importance of e-commerce, the variety of Internet platforms and the revenue generated through Internet sales constantly increase. Commercial agents also perform their intermediary and brokerage activities via the Internet. However, other digital requirements may become relevant, requiring special attention when concluding or extending a commercial agency agreement.

In addition to the drafting of commercial agency contracts, we also offer our support in calculating compensation claims after the termination of the contract per § 89 b HGB. Appropriate compensation payment is to be granted to the commercial agent to transfer his established customer base. The correct calculation is based on several factors is therefore very complex and often a reason for dispute between commercial agents and companies. The value of the customer base on a given date, the prospect of further contracts being concluded, and initial payments by the company to the commercial agent must be considered.

If a prior contractual arrangement is not sufficient to secure the claims, we represent both companies and commercial agents in their enforcement after the termination of the contract. We always prefer an out-of-court settlement of the disputes. However, if this cannot be avoided – even with a comprehensive dispute resolution strategy – our qualified and experienced lawyers are, of course, also available to represent you in court.

Our lawyers for commercial law also offer you their expertise in the extremely important area of distribution law. We can work out the appropriate distribution channels for you and explain their differences as well as legal advantages and disadvantages so that you can set up or design a distribution structure suitable for your company. We ensure that all legal requirements are observed when expanding distribution channels and drafting distribution agreements. We are also available as a strong partner to advise and support you in disputes and disputes with distribution partners. In addition, we work with you to meet the special requirements of e-commerce, from online marketing and copyright law to digital ordering processes and electronic payment.

The establishment of distribution structures for your company can be done in many ways. It is possible to conclude distribution contracts with commercial agents, authorised dealers, commission agents and franchise companies. Often the regulations of commercial agency law as a statutory part of distribution law and some European directives must be considered. The basis of an economic and functional distribution are therefore first detailed contracts, which meet the legal requirements and at the same time protect the interests of the company. In addition to drafting the distribution contracts, we also take care of drafting supply chain management contracts and customer service contracts in the area of after-sales management. These are particularly important for a long-term distribution structure and a solid customer base. Furthermore, we also support you in distribution law in the judicial or extrajudicial settlement of conflicts in ongoing or terminated contractual relationships.

The importance of e-commerce has steadily increased with the variety of internet platforms and turnover via internet sales. It changes the classic distribution structures and is subject to special legal regulations, which must also be observed in B2B business but especially in B2C business and thus in consumer contracts. We check whether your distribution structures in the e-commerce sector, internet platforms and online shops meet these requirements.

As an interdisciplinary full-service law firm, we consider the overlapping fields of law such as copyright law, data protection law, consumer protection law, capital market law and others. From online marketing and the obligation to provide an imprint, digital ordering processes, electronic payment or faulty general terms and conditions of business to questions regarding file-sharing cases, we advise you on all e-commerce legal issues.

Product manufacturers and other parties within the supply chain can avail of comprehensive legal service and representation from the lawyers at Schlun and Elseven Rechtsanwälte in the field of product liability law. There are particular legal requirements for all companies within the supply chain from German law and European law. Our legal team provides ongoing legal support and service to our clients, ensuring that they remain compliant with their legal requirements. We will guide you through ways your company can avoid liability by providing solutions in contractual clauses and maintaining high safety standards.

Concerning the violation of duties of care and manufacturers’ responsibilities, which may trigger liability for damages, a distinction must also be made between product and producer liability. In product liability under the Product Liability Act, the manufacturer is liable for hazards emanating from its product without proving fault on its part. The producer’s liability, according to § 823 BGB, is more narrowly defined. In the case of producer liability, the manufacturer must be at fault concerning a specific type of defect.