According to § 84 HGB, a commercial agent is an independent entrepreneur who is permanently entrusted with negotiating or concluding transactions for a company. They can largely organize their activities and working hours independently.

The essential duties of commercial agents include the activity and negotiation duty (active efforts to conclude business), the duty to protect the principal's interests, the duty to provide information, and the duty of loyalty and care. The duty to protect interests also includes a statutory non-compete obligation during the contract.

The central rights of commercial agents include the commission claim for negotiated or concluded transactions (§ 87 HGB), the right to support from the company (§ 86a HGB), the right to an account extract to verify commission statements (§ 87c HGB), and the compensation claim upon contract termination (§ 89b HGB).

Upon termination of an agency agreement, the commercial agent may be entitled to a compensation claim under § 89b HGB. This is intended to create value adjustment for the company's continued economic use of the customer base built up by the agent.

Three requirements must be met: The contractual relationship must have ended, the company must still be able to derive significant benefits from the customer base after termination, and payment of compensation must be equitable.

The compensation claim is excluded under certain circumstances: if the agent terminates themselves (except with justified cause by the company or for age/health reasons), if the company terminates due to the agent's culpable conduct, or if a third party enters the contract.

The maximum amount corresponds to the average annual commission of the last five years of activity. The claim must be asserted within one year of contract termination – this exclusion period is particularly important.

To calculate the compensation claim, the so-called raw compensation is first calculated. This requires the commission income from the last twelve months before the end of activity. Only closing and negotiation commissions for new customers and significantly intensified existing customers are considered.

The next step is to determine the forecast period – the period in which the agent could still have expected income. Usually two to five years is calculated. For this period, a customer attrition rate (10-30% per year) is deducted.

Additionally, a discount is applied because the compensation is paid as a lump sum. The interest rate is usually three to five percent per year. Finally, it is checked whether further adjustments are necessary for equity reasons.

The raw compensation calculated is compared with the maximum amount. According to § 89b para. 2 HGB, compensation may not exceed an average annual commission calculated from the last five years. If raw compensation exceeds this, it is capped at the maximum.

The statutory notice periods under § 89 HGB are staggered by contract duration: In the first contract year the period is one month, in the second year two months, in the third to fifth year three months, and after the fifth year six months.

Notice periods apply to the end of a calendar month. If the commercial agent works only part-time, a one-month notice period generally applies regardless of contract duration.

Contractually, periods can be extended but not shortened. Importantly, the period must be the same for both contracting parties. Both parties must continue to fulfill their contractual obligations until the notice period expires.

Termination by the company generally gives rise to a compensation claim by the agent under § 89b HGB. If the agent terminates themselves, the compensation claim generally lapses – except in the statutory exception cases.

Under § 89a HGB, both contracting parties may extraordinarily (immediately) terminate the agency agreement if there is an important reason. This means it is unreasonable for the terminating party to continue the contract until the ordinary notice period expires.

Important reasons for companies typically include: violations of the non-compete obligation, prohibited competitive activity, violations of the sales promotion duty (each after warning), or crimes such as forged customer signatures.

Commercial agents can terminate immediately for: missing or delayed commission payments, contractual violations of territory or customer restrictions, or if the entrepreneur fraudulently concealed commission-liable transactions.

As a rule, immediate termination requires prior warning. This should be in writing, name the specific breach of duty, and point to the threatened termination. No more than two weeks to a maximum of two months should pass between knowledge of the termination reason and pronouncement of termination.

If a commercial agent terminates their contract themselves, they are generally no longer entitled to compensation. Exceptions exist if the entrepreneur gave justified cause for termination or if the agent terminates due to age or illness.

For an agent to rely on age, it must make continuing the contractual activity unreasonable. This is regularly the case upon reaching statutory retirement age.

For illness, the following characteristics must be present: The illness must be serious (unreasonableness of continuation until ordinary notice period expires), it must be of unforeseeable duration, and it must lead to an inability that cannot be compensated with substitutes.

A particular issue arises with commercial agent GmbHs (common with gas station operators): Companies argue that a GmbH as a legal entity cannot age or become ill. The legal situation is disputed – it depends on the individual circumstances.

During the ongoing agency relationship, the agent is obligated under § 86 HGB to protect the company's interests. They may not compete with their principal through their own business activities or by representing other entrepreneurs.

A violation of the contractual non-compete obligation can have serious consequences: warning, immediate termination, damages under § 280 BGB, and disgorgement of profits earned.

After contract end, the statutory non-compete obligation automatically ends. A post-contractual non-compete is only effective if agreed in writing (§ 90a HGB), limited to a maximum of two years, appropriately limited geographically and substantively, and appropriate compensation (at least 50% of average annual income) is provided.

If the post-contractual non-compete is too broad or lacks appropriate compensation, the entire provision is void. The agent is then no longer bound by the prohibition and may work for competitors without restriction.

To verify their commission statements, commercial agents have a right to account extracts and information under § 87c HGB. This right cannot be contractually excluded or limited.

An account extract must contain at minimum: order date and number, type, value and quantity of goods, related invoices, customer names and addresses, order processing status, delivery scope and date, payments received, collection measures, discounts and credits, and cancellations.

The claim can be asserted at any time and does not need to be justified. Exceptions exist only if commission statements already contain all relevant information, the agent has expressly accepted their correctness, or commission claims are already time-barred.

If the account extract was refused or there are justified doubts about accuracy, the agent can demand inspection of accounting documents (§ 87c para. 4 HGB). If refused, a graduated lawsuit is possible: first for the account extract, then for the resulting commission claims.

Gas station operators sell fuel and lubricants in the name and on account of an oil company and are thus acting as commercial agents. They can assert a compensation claim after contract termination. The Federal Court sees relevant activity even in simply keeping the gas station open and operating.

Contract dealers buy goods at their own risk and resell them in their own name. Unlike commercial agents, they are not directly regulated by law. However, under certain conditions § 89b HGB may apply analogously – if the dealer was integrated into the sales organization like a commercial agent and was obligated to transfer the customer base.

For agent inactivity, the company can terminate ordinarily or extraordinarily. Prerequisite for immediate termination is usually a warning. The company can also claim damages for lost profits but must prove the breach of duty.

Commercial agents can defend against inactivity accusations through documentation of their activities (reports, customer communications, visit logs) and checking whether the company breached its own duties (e.g., failure to provide required documents).