Especially when several sales partners are involved in a brokerage process, a dispute can quickly arise about which sales partner is entitled to the entire commission or who is due which portion of it. In order to avoid such disputes, many commercial agency agreements provide rules for the allocation and allocation of commissions. The fact that such regulations in the commercial agency contract do not allow the insurer to allocate the commissions at will is shown by a recent judgment of the District Court of Munich I dated November 6, 2020 (file number: 41 O 18755/17) won by the Hamburg law firm Jöhnke & Reichow for a commercial agent.
Insurer should decide on the distribution of commissions
A commercial agency contract contained a commission clause, which provided that if several commercial agents are involved in a brokerage process, it was up to the insurer to decide on the distribution of the commission. In case of doubt, the AV number and the signature under the application should be decisive.
Commercial agent seeks commission sharing for three contracts
In the case to be decided by the Munich Regional Court I, however, a commercial agent did not want to be satisfied with such a distribution of commission. The reason for the dispute was the brokerage of two life insurances and a loan agreement. Only the application for a life insurance policy contained the signature of the commercial agent. The application from the other life insurance company, as well as the application to conclude the loan agreement, however, contained the signature of another sales partner of the insurer. The commercial agent, however, wanted a commission for all three contracts because he felt himself involved in the participation in all three contracts. The insurer, however, referred to the provision of the commercial agency contract.
Each intermediary involved can demand commission
However, the Regional Court Munich I followed the arguments of the law firm Jöhnke & Reichow and came to the conclusion that the regulation of the commercial agency contract was ineffective. In the opinion of the court, the decisive commission regulation of the commercial agency contract did not clarify according to which standards and according to which criteria an allocation was made. Therefore the clause is ineffective. In the absence of an effective regulation of the commercial agency contract, every commercial agent involved in the mediation process could therefore demand a commission.
Legal examination of commission clauses worthwhile
With a view to the loan agreement, the court was able to be convinced by taking evidence that the commercial agent acted as an intermediary and is therefore entitled to a commission. However, this proof could not be provided with regard to life insurance. After offsetting the commission claim for the brokerage of the loan contract with the lower commission reclaim claim from the brokerage of a life insurance, in the end there was still a claim in favor of the commercial agent. The decision thus shows that the formulation of commission clauses in commercial agency contracts can be tricky and it is definitely worthwhile to question the insurer’s commission allocation in individual cases or to subject it to a legal review.
About the author
Jens Reichow is a specialist lawyer for banking and capital market law as well as for commercial and corporate law and a partner in Hamburg Law firm Jöhnke & Reichow. The law firm has, among other things, on the area Commercial agency law specialized.
Image: © fotomek – stock.adobe.com
–
–
