In multiple decisions, the German Federal Court of Justice (August 03, 2017, Cases VII ZR 32/17, VII ZR 38/17, and VII ZR 39/17) and Munich Higher Regional Court (July 19, 2017, Case 7 U 3387/16) dealt with commercial agents’ claims to the issuing of statements of account recently.
1. Commercial agents have a claim against the companies they represent to the granting of a statement of account without special conditions being imposed (Section 87c German Commercial Code). The statement of account is a resource for commercial agents to check whether they have received the commissions to which they are entitled. Drafting a statement of account is frequently associated with a lot of effort because it is an organized presentation of all information relevant to commissions (“reflection of the business relationship”). Unless the company has made provisions at an early stage, primarily by using software, expenses may be immense.
2. The three decisions issued by the Federal Court of Justice on the same date dealt with the time limitation on claims to receiving statements of account. Many of the associated questions had been disputed previously and were answered in different ways by various higher regional courts. According to the Federal Court of Justice’s new jurisdiction, the following will now apply, among other things: the claim to issuing a statement of account will expire three years after the end of the year in which the company issued a final account of the commissions to which the commercial representative is entitled (example: the company issues the commission statement on August 31, 2017 – for the period covered by the statement, the time limitation will then come into effect upon the expiry of December 31, 2020). According to the Federal Court of Justice, a final account of this kind will already exist if the company has drafted a commission account statement relating to a certain period without any reservations. This is associated with an implied declaration that there were no further commission claims. An important point: the limitation period also relates to commission claims that were not accounted for, which had been disputed previously. The commercial representative may no longer request a statement of account relating to missing business transactions for which commission was actually payable, after the limitation period has expired. This does not mean that the commission claims themselves will also expire as a separate limitation period applies to these. Since the commercial agent, however, is often dependent on information from the company in order to assert the claim, the loss of the claim to a statement of account is nevertheless a hardship for commercial representatives.
3. In the case before Munich Higher Regional Court, the company had raised several objections to avoid issuing a statement of account, which remained unsuccessful in the court’s view. Among other things, the company referred to a clause in the commercial representative contract, according to which the right to a statement of account was excluded. The Higher Regional Court declared this provision to be ineffective. In addition, the company referred to the fact that the commercial agent had always received statements and had never objected to these. The court held that remaining silent about the statements could not be considered consent. The company’s argument that the contract included a provision that remaining silent meant acceptance was not adopted by the court. This provision was also considered ineffective. The court, however, rejected the commercial representative’s claim to have the statement of account provided in computerized form. According to the court, there was no claim to this. The company was allowed to provide the statement of account in paper form even if another form would have been more practical for the commercial agent.