Brokerage of theater tickets by visitor clubs: No commercial agent status according to the Higher Regional Court of Frankfurt am Main
The activities of visitor clubs in the brokerage of tickets for state theaters constitute an intersection between civil contract law and distribution law. In this regard, the Higher Regional Court of Frankfurt am Main (judgment of October 16, 2015, ref. 5 U 43/15) clarified that visitor clubs acting as intermediaries between theaters and end consumers, under certain circumstances, are not entitled to the legal status of a commercial agent pursuant to §§ 84 et seq. of the German Commercial Code (HGB). This article provides a detailed legal analysis of the case, the underlying considerations of the court, and the potential implications for similar business models in the event sector.
Background of the case
Contractual relationship between state theater and visitor club
In the case in dispute, a visitor club acquired tickets for its members to attend events at a state theater and subsequently distributed these tickets to its members. The aim was to enable a fixed group of members to attend selected performances. The organization and distribution of tickets were handled by the visitor club, which charged its members a membership fee.
Subject of the dispute: Claim for agent commission
The dispute centered on whether the visitor club was entitled to a commission as a commercial agent according to the relevant provisions of the German Commercial Code. The state theater denied this, arguing that the visitor club had acted not on behalf of the theater, but in its own name.
Key points of the court
Systematic distinction: commercial agents and resellers
In its ruling, the Higher Regional Court of Frankfurt carefully distinguished between the typical status of a commercial agent and that of a principal/re-seller (see §§ 84 et seq. HGB). To establish a commercial agency relationship, it is decisive that the agent consistently brokers or concludes transactions in the name of and on behalf of another.
In contrast, a principal/re-seller relationship exists if an entrepreneur distributes goods or services in their own name and on their own account—regardless of whether the products originate from the ‘supplier’ or not.
Application to the visitor club
The court found that the visitor club independently purchases the tickets from the theater and then resells them in its own name and at its own risk to its members. Accordingly, the visitor club does not act as an intermediary merely between the theater and the end customer, but as an independent buyer and seller. The distribution of economic risk and the contractual relationships confirmed this classification.
Consequently, neither an intermediary nor a concluding agent relationship in the legal sense exists. This excludes claims to agent commissions and the protective rights provided by the HGB.
Legal classification and implications for practice
Relevance under distribution law for art and culture event organizers
The judgment creates clarity for event organizers, subscriber groups, and visitor clubs regarding the legal qualification of such relationships. In particular, it establishes a clear line for distinguishing commercial agency relationships in the artistic sector, where similar distribution models are common.
Companies involved in ticket brokerage should ensure precise definition of their contractual structure and legally classify the supposed engagement of intermediaries. The question of risk allocation and the economic independence of the broker or re-seller can be decisive as to whether protection under commercial agency law (e.g., compensation claims under § 89b HGB) applies.
Significance for future contract design
The judgment underscores the importance of an accurate and clear drafting of the underlying contracts. If a party acts in its own name and on its own account, a commercial agency relationship generally does not exist. In the case of brokerage or concluding agent activities, however, the criteria of § 84 HGB must be examined. This particularly concerns whether there is an ongoing, independent brokerage activity in another’s name and for another’s account, and what reciprocal rights and obligations result.
Potential contracting parties should also keep in mind the tax and corporate law implications of such cooperation.
Concluding remarks
The judgment of the Higher Regional Court of Frankfurt of October 16, 2015, makes clear that in the brokerage of tickets by visitor clubs, classification as a commercial agent within the meaning of the HGB is not automatically given. The decisive factors are always the specific contractual and factual circumstances.
If you have questions regarding the legal structuring of distribution systems, particularly in the event industry, individual legal advice may be advisable.
The lawyers at MTR Legal are happy to provide you with discreet and thorough analysis of your contractual structures.
