Commercial / Distribution Law06.12.2022 Newsletter
Reminder as the year draws to a close: the commercial agent’s claim to an extract of the books could soon become time-barred
This is a tiresome topic for companies: the commercial agent leaving the company requests an extract of the books.
Only recently, it was decided by case law that - when a commercial agent asserts a claim to in-spect the books in order to check the correctness and completeness of the issued extract of the books - companies are initially not obliged to create any documents (Higher Regional Court [Oberlandesgericht, OLG] of Frankfurt, decision dated 14 April 2022 - 26 Sch 1/22, juris). How-ever, this is based on the fact that the company is not obliged to prepare additional, previously non-existing documents for the inspection. The same applies to the procurement of previously unavailable data and documents from third parties. As this decision only concerns the claim to inspect the books, it remains the case that the preparation of an extract of the books devours capacity "at the first stage". We come across this frequently in our daily practice.
However, there is indeed a defence that you should consider, especially as the year draws to a close: the defence of the statute of limitations. The claim to issuance of an extract of the books is governed by general statute of limitations - i.e. the claim is fundamentally time-barred within three years. When this limitation period begins to run has been a controversial issue for years. Dates discussed were, in particular, the end of the year in which the commercial agent received the complete statement of account from the company, or the year to which the claim to an extract of the books related.
The German Federal Court of Justice [Bundesgerichtshof, BGH] has now put an end to this dis-cussion (BGH, ruling dated 03 August 2017 - VII ZR 32/17, juris). The BGH has ruled that the statute of limitations for the claim to an excerpt of the books begins at the end of the year in which the company issued a final commission statement to the commercial agent. The key point here is, in particular: the statement does not have to complete be and include all commissions actually due to the commercial agent. The BGH stated that the actual claim to the issuance of an extract of the books would otherwise come to nothing. Furthermore, the commencement of the limitation period does not require that the commercial agent asserts the claim. Caution is neces-sary, however, if the company does not issue a statement or refuses to do so, in which case the limitation period does not start to run.
Another factor is that the claim to issuance of an extract of the books is "attached" to the com-mission claim. It is an auxiliary claim. This means that it becomes devoid of purpose if the com-mission claim itself is already time-barred or can no longer be enforced for other reasons.
If you are currently in a dispute with a commercial agent leaving your company, then you should - purely under the aspect of the statute of limitations - make sure he receives the final statement of account this year and not postpone to the new year. This will quickly bring you closer to the time-barring of the commercial agent's claims.
If you have been in a dispute for quite some time, remember to check next year whether the de-parting commercial agent can still enforce his claim to issuance of an extract of the books.
Please do not hesitate to contact us if you require our advice!