Foreign businesses trading in Germany, commercial agents operating across borders, and companies managing distribution networks in the German market all face the same challenge: German commercial law (Handelsrecht) is highly complex, constantly evolving, and governed by a framework of statutory provisions, customary practice, and case law that is difficult to navigate without specialist advice.
At Schlun & Elseven Rechtsanwälte, our commercial law team supports traders, commercial agents, sales intermediaries, and international companies across the full range of German commercial law matters. Our services extend from negotiating and drafting commercial contracts to advising on product liability, e-commerce regulations, and distribution agreements. Where legal disputes arise, we represent clients both in court and through alternative resolution mechanisms, pursuing the outcome that best serves our clients’ commercial interests.
Schlun & Elseven Rechtsanwälte is one of Germany’s leading full-service law firms. Our commercial law practice works alongside our corporate, employment, tax, and competition law teams to provide integrated legal support for businesses operating in Germany.
Why German Commercial Law Requires Specialist Advice
When a commercial entity conducts business in Germany, the provisions of the German Commercial Code (Handelsgesetzbuch, or HGB) apply. These are supplemented by customary commercial law, industry-specific commercial practices, and current case law, creating a body of law that shifts alongside regulatory developments and court decisions.
Regular cooperation with an experienced commercial law lawyer protects against legal errors and costly disputes, regardless of the size of the company or the scope of its operations. Our lawyers keep clients informed of relevant legal developments and ensure that commercial operations remain on a sound legal footing. Where disputes do arise, our team advises on the full range of resolution options – from negotiation and mediation through to litigation – working with clients to identify the approach that best matches their circumstances.
Commercial Agency Law in Germany
Commercial agents (Handelsvertreter) play a central role in many businesses’ sales and distribution structures. Alongside authorized dealers, franchise companies, and commission agents, they form an integral part of German commercial distribution. That central position carries significant rights and obligations, and both principals and agents benefit from having their commercial agency agreements reviewed and drafted by experienced commercial law lawyers.
Our commercial law team drafts, reviews, and revises commercial agency agreements, ensuring that the rights and obligations of both parties are clearly set out. A commercial agent’s primary task is to broker and conclude transactions in the company’s interests. The agent must also fulfill extensive information obligations toward the company and comply with any applicable non-competition clause, which can be maintained on a contractual basis even after the agency relationship ends. During the contract term, the commercial agent is entitled to commission, and to compensation following termination of the contractual relationship under Section 89b HGB.
When drafting a commercial agency agreement, the following contractual elements should be addressed:
- Authorization of the company or third parties to independently market goods within the contract territory
- Rights of the commercial agent to utilize industrial property rights
- Confidentiality obligations
- Contractual territory and regional limitations
- Creditworthiness checks
- Non-competition clause, including regulation of the post-contractual period
- Settlement of commission and compensation claims
- Termination provisions: duration and notice periods
Traditional sales structures are also subject to change as a result of globalisation and digitalisation. The growing importance of e-commerce and internet platforms means that commercial agents increasingly conduct their brokerage and agency activities online. Digital requirements – including platform compliance, data protection obligations, and electronic contracting – may require particular attention when concluding or renewing a commercial agency agreement.
Compensation Claims after Termination of Contract
In addition to drafting commercial agency contracts, we offer support in calculating compensation claims after termination of the contract under Section 89b HGB. Appropriate compensation is payable to the commercial agent in recognition of the customer base they have developed for the principal. The correct calculation depends on several factors and is frequently a source of dispute between commercial agents and companies. Relevant considerations include the value of the customer base at the date of termination, the prospect of further transactions being concluded with those customers, and any advance payments previously made by the company to the agent.
Where a prior contractual arrangement is insufficient to secure the claims, we represent both companies and commercial agents in their enforcement following termination. Our preference is always for an out-of-court resolution. Where that cannot be achieved, our lawyers are available to represent clients in court proceedings.
Distribution Law
Our commercial lawyers advise on all aspects of distribution law in Germany. We assist companies in developing appropriate distribution channels, identifying the legal advantages and disadvantages of different structures, and establishing a distribution framework suited to their business. We ensure that all legal requirements are observed when expanding distribution channels and drafting distribution agreements, and we act as a strong partner in any disputes with distribution partners.
Distribution structures may be established through agreements with commercial agents, authorized dealers, commission agents, and franchise companies. The mandatory provisions of commercial agency law – as a statutory component of distribution law – and relevant European directives must be considered alongside the commercial requirements of the arrangement. Functional distribution therefore begins with detailed contracts that meet legal requirements while protecting the company’s interests.
Beyond the core distribution agreement, we advise on supply chain management contracts and customer service contracts within the after-sales management framework, both of which are particularly important for long-term distribution structures. We also support clients in the judicial or extrajudicial resolution of conflicts arising from ongoing or terminated contractual relationships, and we assist with the special legal requirements of e-commerce distribution, from online marketing and competition law to digital ordering processes and electronic payment.
Drafting Commercial Contracts
The foundation of a functioning commercial operation is a set of comprehensive, well-drafted contracts with general terms and conditions specifically tailored to the company’s circumstances. Standard contracts are not sufficient. Different contract types – purchase agreements, licence agreements, work contracts, financing agreements, rental and lease agreements – each carry distinct legal requirements, and a sound understanding of the relevant contractual area is essential to ensure that the company’s interests are protected.
Our commercial lawyers ensure that all contracts reflect current law, account for the latest legislative developments, and incorporate relevant court decisions. We draft and review contracts across all commercial contexts and advise on the legal implications of proposed terms before they are agreed.
e-Commerce Legal Support
The growth of e-commerce has fundamentally altered traditional distribution structures and introduced a distinct body of legal obligations that apply in both B2B and, particularly, B2C commercial relationships. Foreign companies operating online in Germany are subject to specific requirements covering consumer protection, data protection, copyright, imprint obligations, and the terms on which digital ordering processes and electronic payments may be offered.
As an interdisciplinary full-service law firm, we advise on the full range of overlapping legal areas relevant to e-commerce: copyright law, data protection law, consumer protection law, capital market law, and competition law. From online marketing compliance and mandatory imprint obligations through to digital ordering processes, electronic payment structures, defective general terms and conditions, and file-sharing disputes, our commercial lawyers advise clients on all e-commerce legal matters.
Product Liability and Supply Chain Compliance
Product manufacturers and all parties involved in the supply chain are subject to extensive legal requirements under both German and European law. Our product liability lawyers advise and represent clients across the full supply chain on compliance, risk management, and contractual protection.
The Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz, or LkSG) applies to companies with 1,000 or more employees in Germany. It imposes human rights and environmental due diligence obligations, requiring companies to establish risk management systems, conduct regular risk analyses of their own operations and those of their direct suppliers, implement preventive and remedial measures, and operate a complaints mechanism. The annual reporting obligation under the LkSG has been abolished, though documentation obligations remain. The LkSG is expected to be replaced by German legislation transposing the EU Corporate Sustainability Due Diligence Directive (CSDDD) once that directive is implemented. Our team helps clients assess their obligations under the current framework and prepare for the changes ahead.
A distinction must be made between two separate liability frameworks. Under the Product Liability Act (Produkthaftungsgesetz), liability is strict: the manufacturer is liable for damage caused by a defective product without fault needing to be established, provided the product was put into circulation in the course of business. Producer liability under Section 823 BGB is fault-based: the claimant must establish that the manufacturer was negligent in relation to a specific type of defect. The table below sets out the key differences.
| Product Liability (Produkthaftungsgesetz) | Producer Liability (Section 823 BGB) | |
|---|---|---|
| Basis of liability | Strict liability – no fault required | Fault-based – negligence must be proven |
| Who is liable? | Manufacturer; importer into the EU; own-brander | Any party whose negligence caused the damage |
| Applies to | Movable products put into circulation in the course of business | Broader range of situations, including construction defects and services |
| Damage covered | Death, personal injury, property damage (subject to thresholds) | All foreseeable losses caused by the negligent act |
| Burden of proof | Claimant proves defect, damage, and causal link | Claimant proves fault and specific type of defect |
Our lawyers advise clients on both frameworks and help structure contractual arrangements to minimize exposure across the supply chain.
Receivables Management
Where commercial partners fail to deliver contracted services or goods as agreed, prompt and properly managed enforcement of receivables is essential. Our commercial law team advises on implementing effective receivables management and, where necessary, steps in to set deadlines, issue reminders, and pursue enforcement.
We support clients in asserting warranty and contractual rights – including subsequent delivery, rectification, withdrawal, price reduction, and all forms of compensation – and ensure that relevant deadlines and limitation periods are observed. Where claims require court enforcement, our lawyers coordinate that process.
We also defend clients against unjustified claims, including warning letters and cease-and-desist declarations arising from alleged trademark or copyright infringements and alleged breaches of competition law in the context of e-commerce.
Warehouse Agreements under the German Commercial Code
Warehousing services are integral to many industrial and commercial supply chains, enabling the intermediate storage of goods at various points in the distribution process. Warehouse types include stock warehouses, transhipment warehouses, and delivery warehouses, each serving a distinct function in international trade logistics. Our lawyers advise on the full range of warehouse agreements under German law.
The contractual relationship between a warehouse keeper and a depositor – including their respective rights and obligations – is governed by the German warehouse agreement framework under the HGB. The warehouse keeper’s primary obligation is to store and keep the deposited goods. The precise scope of that obligation depends on the terms of the storage contract: whether special storage or collective storage applies, and whether any specific arrangements have been made regarding storage conditions.
The depositor’s main obligation is to pay the agreed storage charges. Under Section 468 HGB, where dangerous goods are to be stored, the depositor must inform the warehouse keeper in writing, in good time, of the exact nature of the danger and any precautionary measures required. Depositors may therefore be subject to substantial disclosure and notification obligations, the scope of which varies with the nature of the goods involved.
Full-Service Legal Support for Business Clients
Schlun & Elseven Rechtsanwälte’s multidisciplinary approach enables business clients to address complex, cross-disciplinary legal requirements through a single firm. Our commercial law practice works alongside our employment law, tax, compliance, and intellectual property teams, ensuring that all legal requirements are considered and that unnecessary disputes are avoided.
Our lawyers draft and review contracts across all industries, advise on German employment and labor law, and keep business clients fully informed of their compliance obligations, including statutory whistleblower protection requirements and developments in German tax law. Working with Schlun & Elseven guarantees continuous legal support across all of your company’s legal concerns.
Frequently Asked Questions relating to German Commercial Law
The German Commercial Code (Handelsgesetzbuch, or HGB) is the primary statute governing commercial law in Germany. It applies to merchants (Kaufleute) — individuals and companies engaged in commercial trade as defined under the HGB — and governs matters including commercial agency relationships, distribution arrangements, warehouse agreements, and commercial accounting obligations. Unlike the German Civil Code (BGB), which applies to all persons, the HGB sets out rules specific to commercial traders that supplement and, in some cases, override general civil law. Foreign companies conducting trade in Germany are subject to its provisions in the same way as domestic businesses.
The Supply Chain Due Diligence Act (LkSG) applies to companies with 1,000 or more employees based in Germany and requires them to establish risk management systems, conduct regular risk analyses of their own operations and those of their direct suppliers, implement preventive and remedial measures, and operate a complaints mechanism. The annual reporting obligation under the LkSG has been abolished, though documentation obligations remain. The LkSG is expected to be replaced by German legislation transposing the EU Corporate Sustainability Due Diligence Directive (CSDDD). Companies in scope — including foreign companies with German subsidiaries of sufficient size — should ensure their supply chain compliance arrangements reflect current requirements.
Product liability under the Product Liability Act (Produkthaftungsgesetz) is strict: the manufacturer is liable for damage caused by a defective product regardless of fault, provided the product was put into circulation in the course of business. Producer liability under Section 823 BGB requires proof of fault — the claimant must establish that the manufacturer was negligent in relation to a specific type of defect. Both frameworks may apply simultaneously, and the distinction significantly affects how claims are structured and what evidence is required. Foreign manufacturers supplying goods into the German market are exposed to both frameworks.
Warehouse agreements in Germany are governed by the HGB, which sets out the rights and obligations of both the warehouse keeper and the depositor. The warehouse keeper’s core obligation is to store and safeguard the deposited goods in accordance with the agreed terms, whether under a special or collective storage arrangement. The depositor must pay the agreed storage charges and, under Section 468 HGB, must notify the warehouse keeper in writing of the nature of any dangerous goods before storage. Failure to give adequate notice can expose the depositor to liability for any resulting damage.
A well-drafted distribution agreement under German law should address the distributor’s territory and any exclusivity arrangements, the products or services covered, pricing and commission structures, minimum sales obligations, non-competition clauses during and after the agreement, intellectual property rights, and termination and notice provisions. Where the arrangement involves a commercial agent rather than an independent distributor, the mandatory provisions of commercial agency law under the HGB apply and cannot be excluded to the agent’s detriment. Foreign companies establishing distribution structures in Germany should have agreements reviewed by a German commercial lawyer before signing, as standard international templates frequently fail to account for HGB requirements.
Under Section 89b HGB, a commercial agent is entitled to compensation on termination of the agency relationship, provided the principal continues to derive substantial benefit from the customer base the agent developed and payment of compensation is equitable in the circumstances. The amount is calculated based on the agent’s average annual commission over the preceding five years, capped at that figure, and takes into account the prospect of future transactions and any advance payments already received. Claims must be asserted within one year of termination. Both principals and agents benefit from taking legal advice promptly when an agency relationship ends.
Practice Group: German Commercial Law
Practice Group:
German Commercial Law
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