In their decision, the judges of the 7th Senate emphasized that § 87a para. 3 sentence 1 HGB (Commercial code) gives the commercial agent an irrevocable claim to commission if it is certain that the principal will not execute the transaction or will not execute it as concluded. In the event of non-execution, however, the entitlement to commission may be waived in accordance with § 87a para. 3 sentence 2 HGB if and insofar as the non-execution is based on circumstances for which the principal is not responsible. The entrepreneur is responsible within the meaning of § 87a para. 3 sentence 2 HGB for the circumstances on which the non-execution of the transaction is based, but not only if he or his employees are personally at fault in this respect, but also if they are attributable to his entrepreneurial or operational risk area or are based on a risk assumed by him. The entrepreneur is not responsible for circumstances that are not attributable to his entrepreneurial or operational area of risk, such as unforeseeable operational disruptions or unlawful interventions by higher authorities.

 

However, according to the unchallenged findings of the Court of Appeal, the hotel closure, which led to the cancellation of the travel contract, was not enforced by legal regulations in connection with the corona pandemic. The regulations in force during the period in question did not prevent the hotel from opening.

 

Rather, according to the findings of the Court of Appeal, the hotel closure was based on an economic decision made by the hotelier due to a decline in bookings - and thus attributable to the represented company. The commercial agent's commission claim was therefore not waived and the tour operator was still obliged to pay the commission.

 

 

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