Judgment of the Higher Regional Court Frankfurt dated July 8, 2025 – Case No. 14 U 193/23
Even if the cooperation was formalized with the conclusion of a cooperation agreement, there may in fact be a commercial agent contract with all legal consequences such as the issuance of a ledger extract and entitlement to commission. For structuring and securing the cooperation, written contracts are of central importance as they clearly regulate the rights and obligations of the parties. This was confirmed by the Higher Regional Court Frankfurt in its judgment dated July 8, 2025 – Case No. 14 U 193/23.
One of the essential characteristics of the activity of a commercial agent includes, among others, the mediation of transactions for another company or the conclusion of transactions in its name. The contractual relationship between the entrepreneur and the commercial agent must be legally classified and determines the mutual claims, especially upon termination of the cooperation. The activity must not only be occasional. The concrete activity and contractual duties are decisive for whether a commercial agent relationship exists, not the heading above the contract, according to the law firm MTR Legal Rechtsanwälte, which advises, among others, in commercial law. The contract duration plays an important role for planning and legal certainty of the cooperation. The agreement between the parties conclusively sets out the respective rights and obligations.
Contract designation not decisive
The judgment of the Higher Regional Court Frankfurt also shows that the actual design of the activity determines the status as a commercial agent. It is of central importance to explicitly designate the contract as a commercial agent contract in order to clearly define the legal framework and differentiate it from other types of contracts. The structuring of the contract has significant legal consequences, especially regarding duties, non-compete clauses, and compensation claims upon termination. A commercial agent contract clearly names the parties: on one side the entrepreneur as the principal and on the other the commercial agent as the intermediary, to unambiguously regulate the respective rights and duties of the party(ies). The procedure was based on the following facts: The plaintiff distributed Corona rapid tests on behalf of a manufacturer. The basis of the cooperation was a contract referred to as a “cooperation agreement.” After termination of the business relationship, the plaintiff claimed payment of commissions for mediated or concluded transactions as well as the issuance of a ledger extract according to § 87c HGB.
The defendant company rejected the claims. It argued that there was no commercial agent relationship but only a loose cooperation. Moreover, for certain transactions, especially a transaction with a large corporation, no commission-relevant contracts had been concluded. After the regional court mostly dismissed the lawsuit, the plaintiff pursued her claim before the Higher Regional Court Frankfurt.
Design of the cooperation decisive
In the appeal procedure, the Higher Regional Court initially clarified that despite the differing contract designation, the plaintiff is to be considered a commercial agent within the meaning of § 84 HGB. The decisive factor is not the title of the contract but the actual design of the cooperation. The plaintiff’s legal status as a commercial agent derives from her independent activity and the contractual as well as statutory rights and obligations assigned to her. The plaintiff regularly initiated and concluded transactions in the name and on account of the manufacturer, thus exercising typical commercial agent activities. The contractual provisions, especially regarding the structuring of the cooperation, the rights and duties, and the contract duration, as well as the economic integration into the defendant’s sales organization, confirmed this finding. In commercial agent contracts, provisions on dispute resolution clauses are often important to efficiently resolve conflicts, for example, through arbitration or mediation. Accordingly, the plaintiff was fundamentally entitled to assert commercial agent claims such as entitlement to commission or issuance of a ledger extract.
Entitlement to commission for commercial agents according to Higher Regional Court Frankfurt 2025
Regarding individual disputed transactions, the court then examined whether the prerequisites for a commission claim were actually met. The legal basis for the commission claim derives especially from the provisions of the Commercial Code, with § 87 para. 2 HGB playing a central role. For the transaction with the corporation, the Higher Regional Court denied the claim. It reasoned that the underlying contract was not concluded with the defendant but with another GmbH. Thus, the required causality between the plaintiff’s activity and a concluded contract of the represented company was missing. In such cases, where no direct connection exists, the commission claim lapses.
Commission claim for follow-up transactions
§ 87 para. 2 HGB also regulates that commercial agents may have a commission claim for follow-up transactions, provided this has not been contractually excluded. In practice, the precise design of the commission regulation is therefore of great importance. There are special cases in which payment of commission may be problematic, for example, if the contract is subsequently terminated or other risk cases arise. In such cases, it must be reviewed whether and to what extent a commission claim still exists.
It becomes clear here that commercial agents can only enforce their claim for commission if there is a concrete connection between their mediation activity and the conclusion of a contract with “their” entrepreneur.
Issuance of an Account Statement
The court paid special attention to the claim for issuance of an account statement according to § 87c para. 2 HGB. The Higher Regional Court of Frankfurt basically affirmed this claim but limited its scope. An account statement must be restricted to information derived from the entrepreneur’s business records. This includes details about customers, contract conclusions, turnover amounts, and incoming payments. For better documentation of the customer base, an annex can be attached to the contract, which serves as the basis for the later calculation of the compensation claim. Data or documents outside the actual bookkeeping, such as internal correspondence, negotiation notes, or confidential strategy papers, are not included. The court made clear that § 87c HGB is intended to allow the commercial agent insight into the accounting-relevant facts but does not establish a general information entitlement concerning all internal company processes.
Significance for Commission Calculation and Customer Care
The maintenance and development of business relationships as well as the sustainable care of customer contacts are of central importance for the commission calculation and the assertion of claims within the framework of the account statement. The customer is at the center, as their business transactions significantly determine the amount of commission and the design of the account statement.
Protection of Confidentiality Interests and Legal Clarity
Thus, the Higher Regional Court of Frankfurt on the one hand strengthened the rights of commercial agents by confirming the claim to a verifiable account statement, while at the same time protecting the legitimate confidentiality interests of entrepreneurs. Especially upon termination of the contractual relationship, attention must be paid to the timely assertion of the compensation claim to safeguard the interests of the commercial agent.
Moreover, the court clarified that merely labeling a contract as, for example, a “cooperation agreement” has no influence on its legal classification. The decisive factor is solely whether the contractual partner acts essentially independently but on behalf and at the expense of another company — thus fulfilling typical characteristics of a commercial agent.
The judgment shows that clear structures should prevail in sales to avoid legal disputes.
Duties of the Entrepreneur in the Commercial Agent Contract
A key component of every commercial agent contract is the clear definition of the entrepreneur’s obligations to the commercial agent. These obligations are not only regulated in the Commercial Code (HGB) but should also be transparently and explicitly recorded in the commercial agent contract itself to create legal certainty for both contracting parties.
Payment of Commission
One of the entrepreneur’s most important obligations is the timely and complete payment of the agreed commission. The commission constitutes the central remuneration for the commercial agent’s activity and should be regulated in detail in the contract — for example, regarding amount, due date, and calculation basis. Unclear or incomplete commission provisions often lead to disputes in practice, which is why precise contractual drafting is particularly important here.
Information Obligations toward the Commercial Agent
Furthermore, the entrepreneur is obliged to inform the commercial agent about all essential changes affecting the sales of products or services. This includes adjustments to the product range, price changes, new delivery conditions, or marketing measures. Only if the commercial agent is informed about current developments within the company can they effectively fulfill their sales tasks in the interest of the entrepreneur.
Provision of Documents and Materials
Another central aspect is providing the necessary documents and materials. The entrepreneur must make all information, product data, price lists, and advertising materials available to the commercial agent that are necessary for successful business activities. This not only ensures smooth sales processes but also strengthens the commercial agent’s position in the market.
Duties upon Termination of the Contract and Compensation Claim
Regarding the termination of the contractual relationship, the entrepreneur is obliged to inform the commercial agent timely about the modalities of contract termination. This includes compliance with statutory or contractually agreed notice periods and the regulations concerning the compensation claim according to § 89b HGB. The compensation claim protects the commercial agent in case they have built up a sustainable customer base for the company during the term of the contract that continues to generate sales for the company even after termination.
Careful Contract Drafting and Legal Compliance
Careful contract drafting is essential for the entrepreneur to avoid future legal disputes. This also includes ensuring that all rights and obligations of both parties – namely the entrepreneur and the commercial agent – are clearly and understandably defined in the contract. A checklist for the commercial agent contract can help capture all relevant contract components such as the heading, precise identification of the contracting parties, description of the products to be distributed, allocation of territories or customer groups, as well as commission regulations.
Continuous Adaptation to Jurisprudence and the Commercial Code
Last but not least, the entrepreneur should always keep an eye on current developments in case law and the requirements of the Commercial Code. Only in this way can they ensure that the commercial agent contract complies with legal requirements and that the cooperation with the commercial agent is based on a solid, legally secure foundation.
Benefits of Transparent Cooperation
By observing these duties and fostering an open, partnership-based cooperation, the entrepreneur can not only promote the commercial agent’s motivation and willingness to perform but also create the basis for a long-term successful business relationship. Transparent and fair contract design also minimizes risks and ensures clarity in daily sales operations.
MTR Legal Attorneys provide comprehensive advice on commercial agent law and other topics of commercial law.
Feel free to contact us!
