OGH: Cancellation of continued commission payment immoral

Apr 22, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) decided that the contractual cancellation of the continuation of commission payments for commercial agents who are not “employee-like” can be immoral.

The plaintiff was a self-employed commercial agent and had a contract with the defendant, who in turn was commissioned to broker energy supply contracts for an energy company. The defendant ended the contractual relationship by terminating it without notice. According to the contract, the cancellation of commission continuation payments was agreed. The plaintiff had several other jobs in addition to this one.

The plaintiff requested, inter alia, the payment of follow-up commissions for the period of two years after the termination of the employment relationship. He was still entitled to commissions from the standing orders he had brokered, as the cancellation of continued payment was immoral under Section 879 para 1 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The lower courts did not recognise any immorality. The OGH did:

The OGH had already found in previous decisions that the cancellation of commission continuation payments in the case of employee-like commercial agents is immoral because the latter earn their livelihood from a single contractual relationship and are particularly dependent on it. Because this was not the case with the plaintiff, the lower courts concluded that there was no immorality.

The compensation claim under Sec. 24 of the Commercial Agents Act (Handelsvertretergesetz, HVertrG), however, is cited as an essential argument for the admissibility of a commission waiver clause. However, it is precisely this compensation claim that was also cancelled in the present case. The agreed waiver clause also included the unjustified premature termination of the contract by the agent (defendant). The agent (defendant) thus had it in his hands unilaterally to deprive the commercial agent (plaintiff) of his excess commissions promised for the conclusion of the contract without the latter receiving any form of equivalent, for example within the scope of a claim for compensation.  

Such an agreement was to be qualified as a gross violation of the legally protected interests of the plaintiff and thus as immoral (Sec, 879 para 1 ABGB).

OGH 4 Ob 142/21t (25.01.2022)