Calculation: sales agent - compensation

Calculation of the compensation claimable in accordance with § 89b HGB

In accordance with § 89b, subp. 1 HGB, sales agents are - under certain circumstances - entitled to claim adequate compensation from principals once their contractual relationship has ended.

  1. Termination of the contract: we need to check the circumstances under which the contract has been terminated and the question whether or not it is continued with another party. In this context, the conditions defined by § 89b, subp. 3 HGB are to be checked: http://bundesrecht.juris.de/hgb/__89b.html
  2. The principal’s material advantage resulting from commercial relationships to new customers acquired by the sales agent that do survive the contract’s termination, § 89b, subp. 1, no. 1 HGB
    New customers: under certain conditions, even relationships to legacy customer now intensified might be considered “new”. In a first step, the continuation of business relations is being assumed.
  3. Commissions lost by the sales agent, resulting from business with suchlike clients.

In this context, we first have to define the so-called gross adjustment:

Calculation of average annual commission

Calculation of the last:
Commission before 5 Years: €
Commission before 4 Years: €
Commission before 3 Years: €
Commission before 2 Years: €
Commission before 1 Years: €

Sub-total (Commission of the last 5 Years):

0,00 €
Deduction for allowances (e.g. warehouse rent) €
Deduction for allowances (e.g. travel expenses) €
Deduction for further allowances €
Deduction for further allowances €
Sub-total (deductions): 0,00 €
Sub-total (difference): 0,00 €

Net annual average:

 0,00 €

19% VAT.

 0,00 €

Gross annual average

 0,00 €

If the gross adjustment exceeds the annual average, the annual average serves as cap.

Additional information on sales agent compensation:

The sales agent’s entitlement to compensation is not subject to prior contrary agreement. However, it might be forfeited if the sales agent acts as such only within the scope of a secondary job (§ 92 b HGB). According to § 89b, subp. 4, s. 2 HGB, the respective compensation is to be claimed within one year (term of preclusion). Moreover, the limitation period for raising claims at court is to be observed (3 years). We recommend considering the competitive situation when sales agent agreements have ended. Of particular importance is the question whether or not suchlike agreements contain a surviving non-competition clause, § 90a HGB. Frequently, suchlike provisions are ineffective or even void.

Concurrent entitlement of authorized dealers in accordance with § 89b HGB?

High court jurisdiction has already set up specific criteria to apply § 89b HGB to authorized dealers concurrently. Consequently, there might be justified claims, if the respective criteria have been met. With respect to authorized dealer claims as per § 89b, subp. 1, no. 1 HGB based on older contractual relationships, the following conditions apply: claims in accordance with § 89b HGB might be justified if the authorized dealer was part of the manufacturer’s/supplier’s sales organization in the manner a sales agent would have been and if the commercial functions to be fulfilled resembles those of a sales agent to a large extent. Moreover, the established law practice requires the authorized dealer to be obliged to transfer its client base to the manufacturer/supplier so that the principal can make immediate and full use of the benefits related to this client base upon the contract’s termination (decree of the German Federal Supreme Court as from 01/13/2001, file no.: UVIII ZR 25/08; decree of the German Federal Supreme Court as from 10/06/2010, file no.: VIII ZR 210/07). The jurisdiction thus takes the fact into account that manufacturers/suppliers do - opposite to what is the case with sales agent assignments - not necessarily need to know the authorized dealer’s clients since suchlike authorized dealers can supply the clients on their own account, without any direct reference to the manufacturer. 

We assume no liabilities whatsoever for the correctness of calculations made here. The information provided thereby is of rather general nature. Revisions of individual cases might yield other results.

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