Commission after termination of the agency contract

It is logical that a commercial agent has the right to commission during the term of his agency. That is the core of the contract, introducing customers in exchange for payment. But under certain circumstances a commercial agent also has the right to commission for agreements that have come into effect after the end of his agency contract. However, in that case there must be a close connection between the work of the commercial agent and the concluding of the agreement. Section 431, subsection 2, Book 7 of the Civil Code sets out that a commercial agent can only make a claim in two cases.

Financial consideration for preparatory work

The first case is in the event that the concluded agreement is mainly the result of work executed by the commercial agent during his agency and the agreement is concluded within a reasonable period after the termination of the agency contract. The law does not answer the question of what a reasonable period is taken to mean. This depends on the circumstances (for example the length of the selling process).

Order placed during the agency

Commission is also owed over agreements that are concluded after the termination of the agency contract, but for which the order was already placed prior to the termination. This must of course concern an agreement that meets the criteria for claims for commission during the agency contract. There must therefore be intermediary activities of the commercial agent, an order from a returning customer, or a customer who is established in the exclusive customer territory and/or working territory of the commercial agent. 

Double commission owed?

The question arises of whether the (mostly present) new commercial agent – in addition to the old commercial agent – also has the right to commission. This would mean that a client must pay double commission. The law has also provided for this: the general rule is that if the first commercial agent has the right to commission on the basis of Section 431, subsection 2, Book 7 of the Civil Code, the successive commercial agent will not have a claim. This general rule can be derogated from if, considering the circumstances, it is fairer if the commission is divided between both commercial agents (Section 431, subsection 3, Book 7). 

Mandatory legal provision

The statutory provision, which records the right to commission after the end of the agency contract, is a mandatory legal provision. This can therefore not be (contractually) derogated from.