GRP Rainer LLP

BGH: Dismissal of a Commercial Agent Without Notice

Minor breaches of a restraint on competition on the part of the commercial agent do not present the businessman with a good cause for dismissal without notice.


Cologne, NRW -- (SBWIRE) -- 04/29/2013 -- GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg and Essen explain: This is taken from the judgment of the Federal Court of Justice (BGH) dated 10 November 2010 (Az: VIII ZR 327/09). In the view of the BGH, a contractual agreement, according to which a commercial agent’s breach of competition law entitles the businessman to instant dismissal, does not inevitably have to give rise to an admissible dismissal. In fact, a dismissal of a commercial agent is probably not admissible where it merely concerns minor anti-competitive violations in addition to there having been no prior written warning.

However, the BGH continued to assert that the parties are in principle free to contractually regulate the circumstances for the requirements of a good cause. Thus, grounds for dismissal could also occasionally be included in the commercial agency agreement, which restrict an otherwise necessary test of reasonableness. Nonetheless, it always depends on an examination on a case-by-case basis, as well as the interpretation of the commercial agency agreement.

Furthermore, the BGH stated that there exists a particularity in the law of commercial agency regarding the limitation of rights to extraordinary termination, as the commercial agent can simultaneously lose his claim to compensation because of this.

The law on distribution comprises an abundance of regulations which concern the distribution of goods and services. Distribution occurs primarily between businessmen and commercial agents as well as appointed dealers, but also between franchisors and franchisees.

In order to encompass the law of distribution in its entirety, various legal norms have to be taken into consideration. Thus, the regulations on the law of distribution are not only in the Civil Code (BGB) and Commercial Code (HGB), but rather the relevant provisions e.g. of competition law, cartel law and international law must also be taken into account. An experienced lawyer is necessary in most cases in order to cope with this.

Such a lawyer can assume the task of preparing commercial agency and appointed dealer agreements, general terms and conditions and franchise agreements. Thus, a lawyer versed in the law of distribution can be of assistance in judicially and extrajudicially enforcing damages claims.

About GRP Rainer LLP
GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.

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