Commercial Agent's Claim for Compensatory Adjustment in Newly Established Company

Pursuant to §89b(1) cl. 1 HGB, a commercial agent can make a claim for compensatory against a business after the termination of the contractual relationship in connection with new customers he has solicited. On October 26, 2011 October (re VIII ZR 222/10) BGH had an opportunity to address the concept of "new customers."

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In 2003, insolvency proceedings were initiated with respect to the assets of two companies. A new company was subsequently established. It acquired from the insolvency administrator, among other things, the customer base of both companies and was to continue the operations of the companies.

The commercial agent who had previously worked for both insolvent companies entered into a commercial agency agreement with the new business. This agreement could be construed to the effect that old customers of one of the insolvent companies were to be considered new customers pursuant to §89b HGB if the commercial agent had substantially expanded or revived the commercial relationship.

According to the Federal Court of Justice, the clause was invalid under such an interpretation. All customers with whom a newly established business conducts business through a commercial agent are necessarily new customers. A newly established business simply has no new or existing customers. That the new business had acquired the customer base from an insolvency administrator and made it available to the plaintiff also did not affect the right to compensatory adjustment pursuant to §89b HGB.

The fact that the business had made it easier for the commercial agent to solicit customers by providing him with the relevant information thus did not affect the commercial agent's basic right to compensatory adjustment. In determining the amount, however, such circumstances could be taken into consideration and, at minimum, result in a reduction.