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Practice 07

Selling into Germany on contracts that actually hold here.

Distribution into Germany runs on contracts — and German law reads them differently than your home jurisdiction does. We structure distribution, agency and supply relationships for international companies, draft standard terms that survive German AGB review, and end commercial relationships without paying for the same mistake twice.

Book an orientation call Frequently asked questions
§ I — Context

The agent's indemnity and the AGB review — two German specialties

Two features of German commercial law catch foreign principals most often. The first is the commercial agent's indemnity under sec. 89b HGB: when an agency relationship ends, the agent is entitled by statute to an indemnity reflecting the customer base built for the principal — a claim that cannot be excluded in advance and that German courts apply in analogy to many distributors integrated into the supplier's sales organisation. Companies that terminate a long-standing German sales partner without modelling this claim discover it as a six- or seven-figure surprise.

The second is the AGB review under secs. 305 et seq. BGB. German courts police pre-formulated standard terms strictly — also between businesses. Liability caps, warranty cut-backs and termination clauses that are routine in other jurisdictions can be void here, and a void clause is replaced by the statutory default, not by what the parties would have negotiated. Between merchants the HGB adds its own discipline, including prompt inspection and notice-of-defect duties whose breach costs the buyer its warranty rights.

We design the distribution structure — agent, distributor, franchise or direct sales — with the exit modelled at the start, draft and negotiate the agreements and standard terms under German law, and handle the contentious end: termination, indemnity claims under sec. 89b HGB and supply disputes before German courts. For export-oriented clients we anchor cross-border contract sets in German law and coordinate other jurisdictions, where needed, in cooperation with independent local partner firms. The recommended step: model the end of the relationship before signing its beginning.

§ II — Services & scenarios

What we handle — and in which situations.

Services

  • Distribution structuring — choice and design of the channel for Germany: commercial agent, distributor, franchise or direct sales, with the exit costs modelled upfront.
  • Agency and distribution agreements — German-law contracts under secs. 84 et seq. HGB, including territory, exclusivity, targets and termination architecture.
  • Sec. 89b HGB indemnity — defence and negotiation of commercial-agent indemnity claims, and pre-contractual structuring that keeps the exposure calculable.
  • Standard terms (AGB) — sales, purchase and service terms drafted to survive review under secs. 305 et seq. BGB, replacing translated foreign templates.
  • Supply and framework agreements — long-term supply, quality and logistics contracts for industrial relationships with German counterparties.
  • Contract disputes — termination conflicts, defect and delay claims, payment disputes before German courts.
  • Export contract sets — German-law anchor contracts for international distribution, coordinated abroad in cooperation with independent local partner firms.

Typical scenarios

  • A foreign manufacturer wants to replace its German commercial agent of 15 years and needs the sec. 89b HGB indemnity exposure calculated before notice is given.
  • An international brand enters Germany and must choose between an exclusive distributor and its own GmbH sales entity.
  • A German industrial customer rejects deliveries over alleged defects; the foreign supplier faces warranty claims and a frame contract termination.
  • A foreign company's global terms of sale are challenged as void under German AGB law in the middle of a payment dispute.
  • A distributor integrated into the supplier's sales system claims an indemnity in analogy to sec. 89b HGB after termination.
  • An export-oriented group consolidates its European distribution contracts onto a German-law master template.
§ III — Statutes & forums

The legal framework.

HGB §§ 84 ff.
The Commercial Code's commercial-agent law: definition, duties, commission and termination of the Handelsvertreter — the statutory frame for most German sales-agent relationships.
HGB § 89b
The commercial agent's indemnity at termination: a statutory claim reflecting the customer base created for the principal. It cannot be waived in advance and is applied by the courts in analogy to comparably integrated distributors.
BGB §§ 305 ff.
The standard-terms (AGB) regime: strict judicial review of pre-formulated clauses, also B2B. Void clauses are replaced by statutory defaults — the central reason foreign contract templates fail in Germany.
BGB §§ 195, 199
The general limitation rules: the standard three-year period, calculated from year-end, frames how long commercial claims — commissions, defects, payment — remain enforceable.
UWG
The Unfair Competition Act: relevant in distribution for advertising claims, sales-promotion design and conflicts with or between distribution partners.
LG / OLG / BGH
Commercial disputes are litigated before the Landgericht and Oberlandesgericht, with points of law decided by the Bundesgerichtshof — whose case law shapes sec. 89b HGB practice in detail.
§ IV — How we start

How an engagement begins.

01

First contact

Send the contract, the draft or the conflict. We reply within one business day and offer a free 30-minute orientation call.

02

Legal assessment

We assess the position in writing — indemnity exposure, AGB audit, termination strategy — at a fixed fee from EUR 1,500 plus VAT.

03

Mandate

Drafting projects run on fixed fees where scopable; negotiations and disputes on hourly rates or a fee agreement under sec. 3a RVG.

04

Ongoing support

Distribution relationships evolve. We keep contract sets current and act as standing German commercial counsel for your sales organisation.

From practice
Every distribution agreement is also a separation agreement. German law just makes you read that part first.
Miriam Vogt · Rechtsanwältin
§ V — Team

Your contacts in this practice.

Rechtsanwältin (Lawyer, Germany)

Miriam Vogt

Commercial, Distribution & Contracts · Commercial Real Estate & Construction · München

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Associate

Sophie Albrecht

IP, IT & Data Protection · Commercial & Distribution · Berlin

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§ VI — Fees

Clear before the engagement begins.

Contract work is the most plannable legal work there is. Standard-terms sets, agreements and audits run on fixed fees; disputes are scoped per phase.

  • Orientation call — 30 minutes, free of charge: structure options and the risks that price the deal.
  • Legal assessment — a written analysis (sec. 89b exposure, AGB audit, channel comparison) at a fixed fee from EUR 1,500 plus VAT.
  • Mandate — fixed fees for contract sets and defined drafting projects, hourly rates for negotiations, or a fee agreement under sec. 3a RVG.
  • Court proceedings — in commercial litigation the statutory fees under the RVG form the floor; we do not undercut them.
§ VII — FAQ

What clients ask first.

What does it cost to terminate our German commercial agent?

Expect two components: the notice period under secs. 84 et seq. HGB, which grows with the relationship's length, and the indemnity under sec. 89b HGB — a statutory claim compensating the agent for the customer base that remains with you. The indemnity cannot be excluded in advance and is calculated from the agent's commission history and the durability of the customer relationships. The exposure is real but calculable: with the commission data we model a corridor before you give notice, and we structure the termination — timing, grounds, settlement — to keep the final number inside it.

Does the agent's indemnity also apply to distributors?

Often, yes — by analogy. German courts extend sec. 89b HGB to distributors who were integrated into the supplier's sales organisation like an agent and obliged to transfer their customer data, so that the supplier keeps the customer base on exit. Many standard distribution setups meet both criteria without anyone intending it. The good news: unlike with agents, the analogy can be managed contractually — how customer data flows and what the agreement says about it materially shapes the exposure. We audit existing distribution agreements for exactly this risk and structure new ones with the exit in mind.

Can we use our global terms and conditions for German sales?

As a translation, no. German AGB law under secs. 305 et seq. BGB subjects pre-formulated terms to strict content review even between businesses, and clauses standard elsewhere — broad liability exclusions, sweeping warranty disclaimers, certain forum and set-off clauses — can be void here. A void clause does not get renegotiated by the court; it is replaced by the statutory default, frequently the worst of both worlds. There is also a battle-of-forms dimension when your customer sends its own purchasing terms. We rebuild your commercial substance as a German-law set that holds, including the order-process mechanics.

A German customer claims our deliveries are defective. What are the rules?

Between merchants, the HGB imposes a prompt inspection and notice regime: the buyer must examine deliveries without delay and give notice of defects immediately, otherwise the goods are deemed approved and warranty rights are lost. Whether your customer actually complied is therefore the first line of defence, before any technical debate. After that, the analysis runs through the contract's quality agreements, the statutory remedies hierarchy and limitation under the BGB. Framework agreements often modify all of this. Send us the contract and the correspondence — the procedural posture frequently decides these disputes before the merits do.

Which law should govern our contracts with German partners?

If your counterparty has the weight to insist, you will often end up with German law — and that is less of a concession than it appears. German commercial law is codified, predictable and litigated before professional courts at calculable statutory cost; combined with a German forum or DIS arbitration clause, it gives you enforceability where your counterparty's assets are. What matters is drafting for German law deliberately — AGB-proof clauses, the sec. 89b HGB question answered, limitation managed — rather than accepting it passively. For multi-country rollouts we anchor the set in German law and coordinate local adjustments in cooperation with independent local partner firms.
§ VIII — Insights

Articles on this practice area.

Articles on German distribution law, the sec. 89b HGB indemnity and contract drafting appear in our knowledge base.

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Distribution into Germany? Price the exit before you sign.

The least expensive moment to address sec. 89b HGB and the AGB rules is before the contract exists. We reply within one business day.

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BRANDT & FALK Rechtsanwälte is a German business-law firm with offices in Munich and Berlin. The content of this website is general information about our fields of work and does not constitute legal advice. An attorney–client relationship is established only by a separate engagement agreement. Unless stated otherwise, all fees are quoted plus statutory VAT. Our lawyers are admitted to the bar in Germany; advice on foreign law is provided by independent local partner firms.