The article is dedicated to the question, under which conditions and circumstances the actions of a commercial agent belonging to a sales organization are attributable to the commercial agent’s principal and when the commercial agent is personally liable.
Briefly to the initial situation: In legal terms, the commercial agent usually takes on the role of an intermediary who initiates and mediates legal transactions between the principal, whose sales organization he belongs to, and a third party. In practice, the commercial agent often acts as the contractor of the principal. In this case, the commercial agent submits the necessary legal declarations for the entrepreneur for the conclusion of the contract with the third party within the framework of a power of representation. The commercial agent only has a contractual relationship with the principal (internal relationship) but not with a third party (external relationship).

Liability of the principal for the commercial agent

The commercial agent is used by the principal as a tool for his sales. The principal must therefore allow the actions of the commercial agent and his knowledge to be accounted for. This attribution of liability is legally justified with the analogous application of section 166 BGB (German Civil Code). If the commercial agent acts as a sales representative, section 166 BGB applies in the relationship to the principal for the attribution of knowledge and nescience.
In Addition, liability of the principal for actions of the commercial agent according to the general rules on the attribution of auxiliary persons and vicarious agents according to § 278 BGB comes into consideration. For example, a financial service provider is liable to customers for damage caused by the misappropriation of certificates and fund shares by a commercial agent belonging to the sales organization. With regard to the drafting of the contract, Section 278 (1) sentence 2 BGB is relevant here, which allows at least an exclusion of liability for willful acts of the vicarious agent. In this context, however, limitations set by the sections 305 ff. BGB, and in particular from § 309 No. 7b BGB, must be taken into account.
Furthermore, liability can also be attributed in accordance with Section 831 of the German Civil Code (BGB). In this context, violations of the law in connection with the violation of a protective law within the meaning of Section 823 (2) of the German Civil Code (BGB) are particularly relevant.

Liability for commercial agents in German antitrust and competition law

The question of whether and under what conditions the actions of a commercial agent are attributable to the principal and lead to liability is regularly discussed in connection with the antitrust and competition law.

For a broad interpretation of the company term, Section 81 (4) GWB is used again and again, which is based on the turnover of the “economic unit” for the calculation of fines:
“[…] When determining the total turnover, the worldwide turnover of all natural and legal persons as well as associations of persons that operate as an economic unit must be taken as a basis. […] “

In the case law of the European Court of Justice, the commercial agent is seen as part of the economic unit of the principal (EuG, Az .: T-418/10, Voestalpine). The European Court of Justice justifies this risk allocation with the fact that the commercial agent works on behalf of the principal and does not bear any economic risk of his own. Even a significant misconduct by the commercial agent (in the Voestalpin case, double representation contrary to the commercial agency agreement) should not change this risk allocation. The legal opinion of the General Court should be strictly observed in the context of the antitrust and competition law risk assessment.

Commercial agent’s own liability

In certain cases, the commercial agent can also be personally liable to the third party. The commercial agent’s own liability towards the third party from the point of fault in contract negotiations comes into consideration, for example, if the commercial agent claims the third party’s special trust or provides own guarantees or makes own promises on the contractual services of the principal. On the other hand, a purely conclusion-oriented behavior of the commercial agent and the contribution of his own expertise are not sufficient for becoming personally liable. Furthermore, a commercial agent who concludes contracts without the required authorization is liable to the customer under Section 179 (1) BGB either for the fulfillment of the contract or for compensation.

© 2021 Christian Feierabend