Commercial Lawyer in Germany

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Full-Service and Legal Representation

We know how important it is for a company to be on a legally stable and reliable foundation. Our experienced team of attorneys not only handles all commercial law aspects of your company, but also all other legal issues that arise. Our portfolio here ranges from the drafting and preparation of all types of contracts and general terms and conditions of business to comprehensive advice on labour and distribution law issues and the assumption of claims management, including expertise in banking and capital markets law. We would be pleased to present our services and support possibilities in detail in a personal meeting.

The international team of lawyers at Schlun & Elseven advises and represents private individuals and companies in the English as well as German.

Drafting Contracts and General Terms and Conditions (AGB)

The basis for long-term business success and a functioning sales department is a comprehensive contract with general terms and conditions of business, which are specially adapted to the conditions of the company. Depending on the type of contract, the general terms and conditions must be harmonized and coordinated with the company’s objectives. Thus, in the case of purchase contracts, supply contracts or contracts for work and services, a wide variety of different but decisive special features must be considered. Yet other aspects must be considered in financing contracts or rental and lease agreements. In all these areas a company cannot rely on standard contracts. Rather, it requires detailed legal knowledge of the respective contract territory in order to draw up effective, tailor-made contracts that are advantageous for the company.

Our legal experts in commercial law can ensure that all decisive contracts guarantee the interests of your company and that the current legal situation, the latest legal changes and highest court rulings are considered accordingly, or the contracts are revised accordingly.

Another essential part of our extrajudicial services is the drafting, negotiation and review of general terms and conditions. In this respect, attention must be paid to the observance of effective and court-proof wording. We do our utmost to avoid the invalidity of general terms and conditions clauses both in B2C and B2B business. This is because the use of incorrect GTCs can lead to warnings from competitors or the consumer protection association as well as claims for damages. In addition, ineffective GTC clauses can lead to the rescission of contracts even several years after the conclusion of the contract, e.g. because the necessary revocation instruction did not comply with the legal requirements.

Effective GTCs thus play an important role, especially in consumer contracts, not least because of consumer-friendly EU law and the case law of the European Court of Justice. Due to this high risk of damage, which arises when general terms and conditions are written, adopted or amended by the consumer without in-depth legal knowledge, it is essential to engage an experienced lawyer at an early stage. Our team of lawyers will work out which general terms and conditions clauses are not only permissible but also appropriate for your business and the respective area of contract and will pay particular attention to compliance with the latest legal changes and case law.

We take over the drafting of contracts, including the drafting and review of the General Terms and Conditions for, among other things:

• Purchase contracts and contracts for work and services, especially in the wholesale trade
• Transport and logistics contracts
• Contracts in e-commerce
• Rental agreements and leases
• Finance contracts
• Factoring and leasing agreements
• Commercial agency agreements
• Advertising contracts
• Employment contracts

Commercial Agency Law

In the form of an individual as well as a partnership (OHG, KG) or corporation (AG, GmbH), the commercial agent plays a decisive role for 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 of course 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 a multitude of rights and obligations on both sides. For this reason, some essential legal aspects must be considered when drafting a commercial agency contract, often of many years’ standing. 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 contract are clearly and comprehensibly formulated.

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

All in all, the following contractual elements should be discussed in any case in the commercial agency contract:

• Contract territory, regional limitation
• Authorisation of the entrepreneur or third parties to independently market the goods in the contract territory
• Design of the product description and marketing
• Subagent and vicarious agent
• Need for a directory of customers and turnover
• Mediation and conclusion of transactions, as well as subsequent customer care
• Takeover of the existing customer base
• Commercial agent’s rights of use of industrial property rights
• Liability agreements
• Obligation of secrecy
• Mutual information obligation
• Obligation of the entrepreneur to cooperate
• Credit assessment
• Confidentiality obligations
• Non-competition clause, in particular regulation of the post-contractual
• Settlement of commission and compensation claims
• Termination of the contract (duration, termination)

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 is constantly increasing. Commercial agents also use this to perform their intermediary and brokerage activities via the Internet. However, other digital requirements may become relevant, which also require 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 the calculation of compensation claims after termination of the contract in accordance with § 89 b HGB. An appropriate compensation payment is to be granted to the commercial agent for the transfer of 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 prior payments by the company to the commercial agent must be taken into account.

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. An out-of-court settlement of the disputes is always preferred by us. 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.

Distribution Law and e-Commerce

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 advan