The unrestricted right to terminate of a commercial agent may not be restricted – not even indirectly. This was made clear by the BGH with judgment of January 19, 2023 (Case No.: VII ZR 787/21).
Commercial law provides that both companies and commercial agents can terminate the commercial agency contract without notice for a good cause. This right of termination cannot be restricted according to § 89a HGB, according to the business law firm MTR Legal Rechtsanwälte.
With its decision of January 19, 2023, the BGH went a step further. It declared that clauses which only indirectly restrict the termination freedom of the commercial agent are also invalid.
In the underlying case, the defendant was employed as a commercial agent for the plaintiff. As contractually agreed, he received commission advances, which he was supposed to offset with earned commissions. However, the commercial agent was not able to balance the account. Therefore, the company and the commercial agent entered into a loan agreement. This contained the clause that in the event of termination of the commercial agency contract, the remaining debt of the loan and the interest accrued as of the termination date become immediately due in one sum. Regardless of who terminated the contract.
When the balance had increased to almost 55,000 euros, the company demanded payment from the commercial agent. However, he only transferred the interest and terminated the commercial agency contract. The company then sued for payment.
While the lawsuit was dismissed in the first instance, it was partially successful at the OLG Düsseldorf. The OLG recognized the claim of the company only on the condition that it prepare a book excerpt for the defendant. The BGH overturned the judgment of the OLG Düsseldorf. The agreement for immediate loan repayment could represent a hindrance to termination for the commercial agent, as it brings severe disadvantages for the commercial agent, albeit not directly but indirectly – namely the immediate repayment of the loan. However, the right to terminate without notice must not be indirectly restricted either, according to the BGH.
The consequence of the impermissible restriction of the right of termination could now be that the commercial agent may not have to repay the loan at all. This must now be decided by the OLG Düsseldorf, to which the BGH has referred the case back.
