Here you will find all of the articles from the Legal Surgery pages of our Magazine since March 2009 (most recent first):
When is a commercial agent entitled to commission?
Commission is one of the two things every commercial agent cares most about, alongside the payment due when the agency ends. This guide sets out when an agent is entitled to commission under the Commercial Agents Regulations, starting with the […]
Read MoreBreach and the Agency Termination Payment
When an agency ends, the agent is usually entitled to a substantial termination payment. But that entitlement can be lost, defended or reduced, and breach of contract is where most of the fighting happens. A serious enough breach by the […]
Read MoreEnding a Sales Agency Agreement: Notice, Timing and Next Steps
Ending an agency agreement is rarely as simple as calling time. How much notice is owed, when the agency legally ends, what the agent must keep doing in the meantime, and how to protect a future claim all have rules […]
Read MoreCommercial agent duties and obligations
Every commercial agent owes duties to their principal, and those duties come from more than one place: the Commercial Agents Regulations, the general law of fiduciaries, and whatever the agent has signed up to in the contract. Getting them wrong […]
Read MoreSub-agents legal guide
A commercial agent can often appoint sub-agents to help carry out the agency, unless the agreement forbids it. But the Commercial Agents Regulations say nothing about sub-agents, which leaves a hard question when an agency ends: if the main agent […]
Read MoreWhat happens when a commercial sales agent wants to retire?
Retirement is one of the few situations where a commercial sales agent can bring their own agency to an end and still walk away with a significant payment. Under the Commercial Agents (Council Directive) Regulations 1993, an agent who resigns […]
Read MoreGoods & Services What’s the difference? The Definitive Answer?
The Commercial Agents (Council Directive) Regulations 1993 only protect agents who sell goods. An agent selling services falls outside them, which can mean losing the right to compensation or an indemnity on termination, often a substantial sum. So the line […]
Read MoreImplications of AI agents for agency agreements
Artificial intelligence is moving quickly into the commercial agency world, from tools that help an agent work faster and smarter, to principals who want to require, or to forbid, the use of AI. This page brings together two contributions: a […]
Read MoreQ’s and A’s on Agency Law
This page brings together questions and answers on commercial agency law from specialist solicitors, drawn from columns published on Agentbase over a number of years. The questions come from real agents and principals, and the answers are grouped below by […]
Read MoreCommercial Agents: Right of access to information and documents
An agent who cannot see the sales figures cannot check they are being paid correctly, or work out what they are owed when the agency ends. The Commercial Agents (Council Directive) Regulations 1993 give agents a statutory right to commission […]
Read MoreCompensation Versus an Indemnity: Some Essential Differences
When a commercial agency ends, a qualifying agent is usually entitled to a payment. That payment is worked out on one of two bases: compensation or an indemnity. They are calculated very differently, the amounts can differ sharply, and which […]
Read MoreA Commercial Agent’s entitlement to Pipeline Commission: Can it be limited or excluded?
When an agency ends, the agent’s work often does not stop earning: orders they set in motion can land on the principal’s desk days or weeks later. Regulation 8 gives the agent a right to commission on that “pipeline” of […]
Read MoreHow does a Court value a compensation claim?
When a commercial agency is terminated and compensation is payable, the amount is not fixed by a formula in the Regulations. Since the House of Lords decision in Lonsdale v Howard & Hallam in 2007, it is worked out by […]
Read MoreHow closely related can an agent and principal be?
To qualify for protection under the Regulations, an agent has to be a “self-employed intermediary”, which in practice means being genuinely independent of the principal. But agents and principals often work closely together. An agent may use a desk at […]
Read MoreAgency agreement – written or unwritten?
Does an agency agreement have to be in writing, and should an agent actually want one? This page brings together four contributions from specialist agency-law solicitors, published as columns on Agentbase. They approach the question from different angles: the legal […]
Read MoreHow does Brexit affect the commercial sales agents regulations?
Ever since the 2016 referendum, agents and principals have asked the same question: would Brexit sweep away the Commercial Agents Regulations, and with them the right to a payment on termination? For years the answer was uncertain. It is not […]
Read MoreWhen is an Agent a Commercial Agent?
Whether the Commercial Agents (Council Directive) Regulations 1993 apply to you turns on one question: are you a commercial agent as defined in Regulation 2(1)? It matters, because agents who qualify can claim compensation, or an indemnity, when their agency […]
Read MoreThe Challenges and Opportunities of the Digital Age for Commercial Agents and Principals in the UK
The digital age has changed how commercial agents work, from online selling and CRM tools to social media and the data protection rules that come with them. It also feeds directly into an agent’s legal position: the goodwill and customer […]
Read MoreWhen can a principal legitimately withhold commissions? When could a war, pandemic or other event result in a contract coming to an end?
By Ben Griffin of DWF Law LLP External events, such as a war or a pandemic, can have a significant impact on commercial relationships and focus minds on what might happen if such events impact on their contracts. For principals […]
Read MoreWhat should be included in an agency contract?
When a principal and an agent put their agreement together, a handful of clauses cause most of the difficulty if they are not thought through. This guide by solicitor Kevin Manship walks through them in the order they tend to […]
Read MoreWho are you contracting with?
Whether you are an agent or a principal, one of the most basic questions about your agency is also one of the easiest to get wrong: exactly which legal person is the contract with? A trading name is not a […]
Read MoreOverseas principals: governing law and jurisdiction
More and more agents act for principals based abroad. When that relationship goes wrong, two questions come first: which country’s law governs the agency agreement, and which country’s courts have the power to hear the dispute. The answers decide how […]
Read MoreCan an agent act for competing principals?
Commercial agents routinely carry ranges from several manufacturers at once. But can an agent act for principals who directly compete with each other, without breaching the duty to act dutifully and in good faith? The question was settled by a […]
Read MoreExclusive, sole or non-exclusive agent: what is the difference?
Whether you are a company appointing a sales agent or an agent trying to understand the appointment you have been offered, the words exclusive, sole and non-exclusive matter a great deal, and they are often used loosely. This page brings […]
Read MoreTerminating sales agents and distributors – can Covid and Brexit reduce the cost?
External shocks can prompt a wave of terminations, with principals and suppliers asking whether events outside their control offer a cheaper exit from their sales agency and distributorship agreements. Two obvious examples are the disruption caused by Covid and by […]
Read MoreCommercial Agency 28 Years later (3 Part article)
(This article was originally published in 3 different parts – but for your convenience we’ve put all 3 together on this page) You may have watched the cult horror film 28 Days Later and its sequel 28 Weeks Later about […]
Read MoreMaking changes to a sales agency contract
Agency relationships rarely stay static. A principal may want to cut the territory, drop the commission rate, convert accounts to house accounts, add sales targets or reporting, or require the agent to change how they work. How much of this […]
Read MoreCompensation claims & smaller value agencies
For a high-earning agency, a compensation claim on termination can be substantial. For a smaller agency, the picture is harder: the way the law values these claims can leave little to recover, and the cost of fighting for it can […]
Read MoreRoadmap to a Compensatory Pay-Off
Making the assumption of an agent being a ‘commercial agent’ for the purposes of the Commercial Agents Regulations, the following is a short checklist of some of the points an agent needs to be aware of if intending to pursue […]
Read MoreDeath of a Salesman
A staggering two thirds of adults in the UK are thought to have not prepared a will, meaning that their possessions, money and property could be left with someone they have not chosen. Of those people who have made a […]
Read MoreWhat is the secret to a successful agency?
It’s the question that all principals and agents would love to know the answer to but, unfortunately, there isn’t a magic formula that can guarantee that an agency will be successful. However, there are some products that have achieved tremendous […]
Read MoreAgents and distributors: the issues of confidential commercial information and personal data
The UK is one of the world’s most advanced digital economies and this is both strength and a weakness, according to a report on BBC News on 13 February 2017. Principals and suppliers and agents and distributors are exchanging confidential […]
Read MoreThe Commercial Agents Regulations mean I have access to justice, right?
Access to justice – an idealistic catchphrase well-used by politicians and lawyers which seeks to reassure those who have been wronged that there is redress available to them, but what does it really mean and does it actually exist? The […]
Read MoreThe criminal law of bribery in commercial agency relationships
The Bribery Act 2010 reformed the criminal law of bribery in the United Kingdom. It abolished the bribery offences that had previously existed at common law and in statute, and extended the offence of bribery to cover all private sector […]
Read MoreCan an agent bring a discrimination claim against his principal?
In the 19th Century the relationship which we now call “employer and employee” was referred to as “master and servant”. The law did not interfere much with the relationship – the philosophy was freedom of contract. Today the law interferes […]
Read MoreWhat does it all mean? Interpreting the agency contract
Every agency arrangement rests on a contract, and when a dispute arises it usually comes down to what the words of that contract actually mean. This guide covers how the courts read an agency contract, and then works through a […]
Read MoreTo What Extent are Termination Payments Taxable?
So, the great news is you have successfully settled your commercial agency claim (or, for the unlucky few, you have withstood the pressure of a court trial and been awarded damages by a court). The bad news is that the […]
Read MoreWhat does your agency agreement say about compensation?
by Emma Butcher of Clarkslegal LLP Under the Commercial Agents (Council Directive) Regulations 1993 (the “Regulations”), an agent is usually entitled to a payment when his agency agreement is terminated by the principal (unless the agreement is being terminated as […]
Read MoreWhy being an overly aggressive litigator may cost you your dream home!
By Thom Vaughan – Solicitor EAD Solicitors LLP Every party approaches litigation differently. There are those who are measured and careful, others who are devilishly strategic and set traps, and then there is the class of bellowing, red – faced […]
Read MoreTransferring Agency Agreements
by Andrew Leach of Cobbetts L.L.P. The English High Court has recently ruled that an assignment is insufficient to transfer an agency agreement to a limited company set up for tax reasons. This can have serious consequences if the principal […]
Read MoreCommercial Agency Law: Gledhill v Bentley Designs
An agent’s relationship with a principal rests on trust, and the Regulations require the agent to act dutifully and in good faith. So what happens when an agent tells the principal exactly what they think? Disparaging remarks about a principal […]
Read MoreCommercial Agency Law: The 2010 Update
In 2010, Christopher Tayton of Clarkslegal LLP wrote a three-part update on how the courts had been interpreting the Commercial Agents (Council Directive) Regulations 1993. Between them, the three parts cover how compensation is calculated, who counts as a commercial […]
Read MoreCommercial Agency Agreements and Restrictive Covenants…
Guest contribution by Alain Cohen, Director, Ashby Cohen Solicitors, London. First published 23 December 2009. Reproduced in full below. When an agency ends, how far can a principal go in stopping the agent from competing? The case of BCM Group […]
Read MoreAgents Trading under Their Own Name Not Subject to Regulations…
by Alain Cohen Director, Ashby Cohen Solicitors, London A recent decision in the Court of Appeal emphasised that to come within the definition of a “commercial agent” within the Commercial Agents (Council Directive) Regulations the agent has to act on […]
Read MoreA Change in the law regarding compensation
When a sales agency is terminated, the agent is usually entitled to compensation for the value of the agency they have built up, whether or not they ever signed a written contract. This article explains where that right comes from […]
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