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- Title
Bargeldlose Zahlungsmöglichkeiten sind nicht immer Unterlage i.S.d. § 86a HGB.
- Abstract
The article discusses whether cashless payment options can be considered necessary documents within the meaning of § 86a of the German Commercial Code (HGB). It is determined that this is not the case if the commercial agent could also obtain the payment service themselves on the market. An agreement on a lower commission for the use of bank cards/credit cards by the gas station customer is valid as long as it is considered as a price for the use of payment services provided by the credit industry. In the present case, it concerns a commercial agency agreement between the plaintiff and the defendant, a petroleum company. The contract provides for a reduction in the plaintiff's commission depending on the type of payment (debit card or credit card). The plaintiff now demands payment of the withheld amount. The district court dismissed the claim and the appellate court also dismissed the appeal. It is determined that the provisions of the contract are valid and the plaintiff has no claim to payment. The text deals with a judgment of the Federal Court of Justice (BGH) dated November 17, 2016, on the subject of documents for commercial agents. It is determined that according to § 86a (1) HGB, all documents are covered that the commercial agent needs to carry out their activities. However, these documents must be interpreted narrowly and have a close connection to the products being sold. The provision of cashless payment options by the entrepreneur is not considered a necessary document. The provisions regarding commission are not subject to content control according to § 307 of the German Civil Code (BGB). The text deals with the topic of ancillary agreements on prices and their controllability. It is explained that ancillary agreements on prices do not regulate the price and scope of fees, but rather the manner of provision and any modifications. Ancillary agreements that have indirect effects on price and performance and can be replaced by default statutory law in the absence of contractual regulation are controllable. In the present case, there is no controllable ancillary agreement on prices, as the regulations regarding the fee only regulate the amount and no further modifications are recognizable. It is also explained that price clauses are controllable and ineffective if they do not concern a consideration for a provided service, but rather transfer general operating costs or expenses to the customer. The disputed provisions on the reduction of commissions withstand content control and do not lead to an unreasonable disadvantage for the commercial agents. According to the provision, the claim for commercial agent compensation cannot be excluded in advance. It is permissible to negotiate the commission freely, even if this has an impact on the compensation claim. The commission structure does not unreasonably disadvantage the commercial agents. It is known that the credit industry charges higher fees for credit card payments. The decision is based on the specific circumstances of the individual case. There is no fundamental significance and no need for an oral hearing. The local jurisdiction is an important aspect in legal matters. The Federal Court of Justice has determined in a decision from 2009 that local jurisdiction is significant. This decision is further explained in the specialist journal NJW 2009, 1974, paragraphs 3 and 4.
- Subjects
COMMERCIAL documents; CREDIT card fees; BUSINESSPEOPLE; ELECTRONIC funds transfers; PRICES; COMMERCIAL drivers' licenses
- Publication
Internationales Handelsrecht, 2022, Vol 22, Issue 6, p253
- ISSN
1617-5395
- Publication type
Article
- DOI
10.9785/ihr-2022-220608