The Commercial Agent's Indemnity Claim (§ 89b HGB)

Particular care is required when concluding distribution agreements. A central role is played by the legal classification of the agreement – in particular, whether it is a commercial agency agreement (Handelsvertretervertrag).

The classification of an agreement as a commercial agency agreement is decisive specifically with regard to the commercial agent's indemnity claim (Ausgleichsanspruch). The prerequisite for such an indemnity claim is that the commercial agent has acquired new customers for the principal or has significantly expanded existing business relationships, and that the principal continues to derive substantial benefits from this after the termination of the contractual relationship, for example where these customers continue to be supplied by the principal.

The special feature of the claim is that it cannot be regulated differently between the parties before or during the term of the contract. From the principal's perspective, the classification of the agreement as a commercial agency agreement therefore always entails the risk of an indemnity claim.