A commercial agent has various duties to fulfil pursuant to the provisions of the Commercial Code (HGB)
GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London explain: § 84 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 is faced 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.
Within the scope of the duty to endeavour provided in the HGB, the commercial agent is to be considered a representative of the businessman who must endeavour to carry out his remit. At the same time, this duty to endeavour is accordingly his principal duty such that it is not enough for him to comply with it merely incidentally. The crucial element here is not that the commercial agent facilitates as many mediations or deals as possible, but rather that he obtains 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. The commercial agent is ultimately obliged to preserve the interests of the businessman.
If the commercial agent mediates a deal or concludes a business transaction, he must promptly inform the businessman of this. In particular, he must account for the particulars of the mediation or the deal. This means that the commercial agent may be faced with additional duties within his duties to communicate and furnish information, namely the duty to be accountable. Additionally, 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 commercial agency law germany in good time where claims may be raised against them.
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