A company learns that its commercial agent is convicted of tax evasion under criminal law; it terminates the commercial contract without notice. Later it learns that the commercial agent was living in economically chaotic circumstances and was on the verge of insolvency.
The commercial agent becomes insolvent and the insolvency administrator sues (in the commercial agent's place) the company for payment of a compensation claim according to § 89 b HGB.
Usually, the commercial agent loses his claim for compensation according to § 89 b (3) no. 2 HGB if the principal has terminated the contract for cause and a culpable conduct of the commercial agent was the cause for this. The Regional Court of Cologne (judgement of 20.11.2020 - 89 O 21/20) did not assume such a case and recognised the claim for compensation. Only the reasons known to the terminating company at the time of the termination, i.e. the commission of the criminal offence, were to be taken into account. Although the offence was serious, it was not directed against the company. According to an interpretation in conformity with the Directive (the Commercial Agents Directive 86/653/EEC is meant), further reasons could not be added. The Cologne Higher Regional Court (OLG) confirmed the opinion of the Regional Court in its reference decision of 01.03.2021 (19 U 148/20). It could not be determined at the time of going to press whether the judgement is legally binding.