In this part of our short series on commercial agency agreements, with which our law firm would like to convince you of our expertise in the field of commercial law, we will come to the area of commission settlement.
In principle, the following applies: The commission is an activity-related performance-related remuneration. The agent must have done something that is at least partly responsible for the conclusion of the contract. The contract between the customer and the agent must be final and legally effective. The frequently observed practice of changing the agent's commission rates during the term of the contract cannot be implemented by general terms and conditions. The old principle of "pacta sund servanda" also applies here. The contract concluded with the agent can only be amended with the agent's consent. Such provisions are only effective if they adhere to the rules that generally apply to amendment clauses. In the absence of an effective provision, the principal can only help himself by terminating the contract. It is doubtful whether collection commissions can actually be waived by general terms and conditions, but the result is probably negative. This is because if the commercial agent provides a service, as is the case with debt collection, for example, he must also be remunerated for this. Excess commission can be excluded, but presumably not through general terms and conditions. It is also controversial whether the agent can be persuaded by general terms and conditions to waive part of the commission by giving the customer a discount. This should be rejected because, at least in a standard contract, the agreement to such a waiver by the agent cannot be assumed in advance for all cases. Whether the agent wishes to waive part of his commission in individual cases should be left up to him. Formal exclusions or reductions of the agent's commission because the principal has participated in the initiation of the transaction are invalid. Del credere commissions are expressly regulated by law: If the agent vouches for the collectability of the claim, the del credere commission is owed, §§ 86b HGB, 307 para.2 no.1 BGB. If he does not receive the commission, he does not have to vouch for the fulfillment of the obligation.
The claim arises upon conclusion of the contract. If something else is agreed, the agent has an unwaivable claim to payment of an appropriate advance, which arises with the execution of the transaction by the principal. All provisions that deviate from § 87a III HGB and are ineffective for the commercial agent are ineffective.
According to § 87a IV HGB, commissions are due at the end of the month in which the claim is to be settled in accordance with § 87c HGB. Settlement must take place within a maximum of three months. Cancellation clauses are generally ineffective.
