Commercial agent
of the commercial agents is independent tradesman, who is assigned to obtain or lock in its names for another entrepreneur (offerer) business. He works on strange names and for strange calculation.
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characteristics
the legal status of the commercial agent is an independent one. He is just as independent entrepreneur as the offerer, whom he represents. The commercial agent does not have a natural personits; it can occur also in form of a finance company, about to a GmbH. An entry into the trade register is no longer necessary for natural persons as commercial agents since 2005. A commercial agent is not also compellingly a buyer in the sense of the commercial code (HGB).
ThatCommercial agent is essentially free in the organization of his activity and the determination of his work time. This personal independence differentiates the commercial agent from the dependently busy traveler.
The commercial agent can be obligated however despite independence to pay contributions to the legal old age pension insurance (no employer portion). That is thenthe case, if
- the commercial agent employs no further person subject to compulsory insurance employee, whose pay from this conditions of employment exceeds regularly 400 euro in the month in connection with his activity regularly and
- which commercial agents in the long term and essentially only for an entrepreneur is active.
A continuing activity foronly one employer by the old age pension insurances one accepts if five Sechstel or more of the total income of the commercial agent come from a client.
If necessary the possibility exists of going around the old age pension insurance obligation by the fact that on the part of the commercial agent an own marketing company (legal entity) based or a further agencyone takes over. For existence founders there are beyond that temporally limited possibilities of being able to be freed from the old age pension insurance obligation.
Contrary to the employees travelers the commercial agent can become active also for several offerers, if him that is contractually permitted (so mentioned „multi-firm representatives “).
Obligations of the commercial agent
- effort obligation: The commercial agent has himself around the switching and/or. in order to endeavor the conclusion from business to. The interest of the enterprise is to be considered thereby.
- Obligation to notification:The commercial agent is obligated to communicate to the offerer each business switching immediately as well as in regular intervals (traffic usualto report weekly until monthly) on the market tendency.
- Obligation for competition abstention:A restraint of trade is specified not express in the law, results however from the general safeguarding of interests obligation of the commercial agent. The representative may not damage the enterprise by the simultaneous agency of the competition. Restraints of trade become frequently contractualout-arranges closer.
- other obligations of a tidy buyer: In addition belong the respectable consultation of the customers, the correct designation of prices and conditions of the offerer and a competition-legally perfect behavior.
rights of the commercial agent
- right to commission:The commercial agent is a right to remuneration inForm of a commission. This can be agreed upon for example in form of a switching or acquisition costs. As a check of the commission legally large rights are granted to the commercial agent. So it may demand a book excerpt in accordance with § 87c HGB for example and if necessary. even the books of the offerer, for thathe is active, see.
- Balance requirement: If the commercial agent is regularly quit by the offerer, he has requirement on compensation, if the offerer draws substantial advantages from his earlier activity.
- Quite on notification:The commercial agent is to be informed about the business obtained by him. The offerer is inCountermove obligated to accept contract offers of the commercial agent and cannot reject, in particular with bad soil quality of the customer, these.
- Quite on documents: The commercial agent can require the documents necessary for its sales activity (sample, price lists, advertising prints, trading conditions). Travel expenses however the commercial agent must carry.
commission
The Provisionsvergütung of the commercial agents varies extremely after industry and product life cycle. Consumer goods are provisioniert with up to 50 per cent (z. B. Encyclopedias in book form, Kosmetika or food additions). The maturity of the commissions is agreed upon in such a manner gladly as put underneath clause that these are only due ifthe customer pays. Here it is to be noted that such a regulation includes the commercial agent into the achievement contribution of the enterprise, although it does not have any influence on these!
Treatment of complaints with bad achievements of its offerer and the consequence of Zahlungsverzögerungen become in this way gladly on the economically weakerCommercial agent shifted, there the enterprise for the advantage of the reduction of costs z. B. through unsatisfactory specialists or more inexpensive material also still the commission in this way saves. The commercial agent is to induce the customer at his expense to paying, even if the offerer carries out badly. Within the building range,in the textile and within the medium range already small lack have often as a consequence that customers do not pay or retarded. This constellation can become fast existence-threatening for the commercial agent, while customer and offerers die if necessary law cases for many years. Details in addition in the commercial agent contract.
rights of representation
thosedifferently out-arranged action authority of the commercial agents settles in a uniform definition for the problem description of a commercial agent:
Switching representative: Provision from requests to the delivery of an offer from the market (customer inquiries) with the right of the offerer under loss of the commission for the representative (there thesehere no district protection enjoys) being allowed to negotiate or through third with customers. The commercial agent may not lock rechtsgülig, deliver thus no declaration of intention for the offerer. The offerer can reject or in-house pass each offered conclusion on, so that the representative does not receive commission. Thus standsthe switching representative in the competition with the offerer and/or. other representing the offerer without each area protection. This representative does not only have itself arbitrary cutting of its area (and thus its if necessary. basis of existence even developed) leave fallen, but enjoys besides no requirement on Kundenschutz oppositeColleague or on the part of the own client. The present contract Treaty is submitted by many enterprises to its “independent” commercial agents in model contracts of the IHK or the Justiziar of the offerer.
Conclusion representative: Delivery of legal declarations of intention for the offerer, with the consequence that the offerer the fulfillment of a contract only in the exceptional caseto reject can, e.g. with solvency lacking of the placed customer or delivery bottlenecks, whom admits to the representative in time were. Since the representative enjoys no district protection here, the offerer under loss of the commission for the representative or through third with the customers contracts can lock (to leave).
District representativeas a switching representative provision from requests to the delivery of an offer from the market (customer inquiries) with the right of the offerer through renouncement of a commission shortening against the representative to be allowed to negotiate or through third with customers in the certain area. A switching representative, thus additionallya certain area was assured, in which the offerer or other representatives of the offerer with nevertheless due commission for the representative to become active to be allowed. This is life practical a very frequent constellation in the domestic selling, since on the one hand security is given to the independent commercial agent that alsoso-called. “Chief customers” it money bring in, on the other hand the offerer however decide, it actually implements which customer inquiries. This control sucked for appropriate efforts on both sides.
District representative as a conclusion representative provision from requests to the delivery of an offer from the market and delivery of legal declarations of intention for thatOfferer, with its right to be allowed to negotiate during commission payment for the representative, or through third with customers in the certain area. This commercial agent enjoys thus both an area protection, and the privilege for the offerer valid declarations of intention (promises) opposite the customer closecan. This constellation will select an offerer, if the market gives not enough qualified commercial agents to open is ready for example a larger area at own expense without appropriate collateral. Also highly-qualified representatives with expert function or representative, the own patents marked out leave themselves from the offerertake the authority to contract rarely. The offerer may be selst also verkäuferisch active, must however for each business in his area the commission to the representative pay.
Frequently such districts are acted as enterprise value and balanced during the operating evaluation of the commercial representation.
Sole agent as a switching representative provision ofTo be allowed to negotiate requests for the delivery of an offer from the market for the entrepreneur (customer inquiries) without the right of the offerer or through third with customers in the certain area. This representative developed, invested in advertisement and marketing and enjoys its marketing areaperfect protection. Even if the entrepreneur would pay a commission, he might not offer its own product in the sole agency district. The commercial agent receives so a substantial powerful position, which can become existenziell threatening during less achievement of the representative for the offerer. The right offered remains to the entrepreneurOrders e.g. to reject or the conditions after-negotiate with delivery bottlenecks; the area is leased usually however to the protection from inactivity by the offerer temporarly to the commercial agent.
Sole agent as a conclusion representative delivery of legal declarations of intention for the offerer, without its right with customers indetermined be allowed to negotiate area. This commercial agent has not only the right legal declarations of intention for the offerer to deliver (conditions etc.), but enjoys also the protection from each selling activity of the offerer or third in cannons the area. This agreement is rather rare in the regular selling business and setsahead that the commercial agent its area gepachte or and the offerer acquired is at any time lierferfähig. Thus a such agreement e.g. makes. Sense, if a foreign entrepreneurs with a commercial agent of enormous confidence is dependent on the perfect new development it unknown of a market and the commercial agentsor pays a domestic representative current fees for the number of potential customers (industry participants) in the agency area invests substantial means in advertisement and market study for the selling of its manufacturer or importer. In this case the commercial agent is the actual offerer and the manufacturer places to the commercial agentfor example the product (e.g. Software) without further delivery costs for the order. Frequently it acts with these commercial representations around legal entities with own, sub-agents more badly placed.
Normally at least the market study and image advertisement are operated by the manufacturer or importer. In addition, it is possible, these expenditures for thatTo attribute commercial agent. Such a commercial agent will forbid himself it or without the agency will do as a substitute, if the manufacturer or Improteur (if necessary. even without domestic market knowledge) or through third with customers in contact steps, for whose speech it invested high sums. In such casescan also the commissions enormously upward deviate.
As a rule, if the manufacturer or importer is present locally, middle authority and agreementagreement agreements are closed. The variety of the possibilities is often the entrepreneur not well-known, so that falling back to so-called. “Model contracts” mostis negligent.
area of application
a natural border for the use of independent commercial agents is with a consulting intensity, which is not to be realized no more from an individual coworker (particularly within the capital goods range), because extensive technical, economical and if necessary. legal conditions into the offer flow.These teams are not for obvious reasons independent salesmen. On the other hand the commercial agent not even assigned, if it is possible, the market also over the direct sales, z. B. by Internet to serve.
The independent commercial agent sells thus usually visible achievements, which heas single fighters at the market platzieren can. Exceptions are again often firm large commercial representations in form of a finance company with own, employee salesmen.
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