• The Commercial Agent within the Scope of the Commercial Code (HGB)
  • May 15, 2013 | Author: Michael Rainer
  • Law Firm: GRP Rainer LLP - Berlin Office
  • There are many different duties to accomplish pursuant to the provisions of the Commercial Code (HGB) by a commercial agent.
    GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: The HGB defines commercial agent as anyone who as an independent trader has continuing authority to mediate transactions for another businessman or conclude them in that person’s name. He has to deal with the duty to both endeavour to solicit this mediation or such a deal, as well as communications and the duty to furnish information in addition to other duties.
    The commercial agent is to be considered a representative of the businessman who must endeavour to carry out his remit within the scope of the duty to endeavour provided in the HGB.
    At the same time, this duty to endeavour is therefore his principal duty such that it is not adequate for him to comply with it simply incidentally. The key element here is not that the commercial agent enables as many mediations or deals as possible, but rather that he gains suitable turnovers. The businessman, who can hence be regarded as the principal, can substantiate the commercial agent’s duties to endeavour to that effect by providing him with instructions. Therefore the commercial agent is ultimately obliged to preserve the interests of the businessman.
    In the case that the commercial agent facilitates a deal or concludes a business transaction, he is obligated to inform the businessman immediately. In particular, he must account for the deal or the particulars of the mediation.
    In addition to his duties to communicate and furnish information there is another duty that the commercial agent may be challenged with, namely the duty to be accountable. Furthermore, the businessman can demand information about the state of things at any time.
    The other duties of the commercial agent include, among other things, that he must observe the same standards of care as a businessman or preserve the business secrets disclosed to him, even if it might not ultimately lead to the conclusion of an agreement.
    The legal consequence, in particular with respect to a breach of a duty of care, can potentially be a claim for damages of the businessman against the commercial agents. Commercial agents should consult a lawyer in good time where claims may be raised against them.