Closing commission: the signature does not trigger it

The short answer

The customer's signature does not trigger the closing commission. Under § 87a(1) sentence 1 HGB, the claim arises as soon as and to the extent that the company has performed the transaction — delivered, activated, put into operation. It falls away again where it is established that the customer will not perform (§ 87a(2) HGB). Everything in between is contract drafting, and that is exactly where the disputes arise.

Three points in time, all of them called “the close”

When commission is disputed in sales, those involved are almost always talking about different days within the same transaction. A commission section has to keep these three cleanly apart:

Point in time	What happens	Legal consequence
Conclusion of contract	The customer signs	The transaction is “concluded” within the meaning of § 87(1) HGB — the basis of the claim, but not yet its creation
Performance by the company	Delivery, activation, installation	The claim arises, § 87a(1) sentence 1 HGB
Performance by the customer	The customer pays	The claim arises irrespective of any differing agreement, § 87a(1) sentence 3 HGB

The third point is the one I most often see overlooked. You can contractually depart from the first sentence and set the commission later. But then sentence 2 applies: from the point of performance there is a claim to a reasonable advance, due at the latest on the last day of the following month. And sentence 3 cannot be negotiated away in any case — once the customer has paid, the commission is earned.

It then does not become due immediately but on the last day of the month in which settlement is to be made under § 87c(1) HGB (§ 87a(4) HGB). Settlement is monthly, the settlement period may be extended to at most three months, and the settlement must be made without undue delay, at the latest by the end of the following month.

When the commission falls away again — and when it does not

Here lies the asymmetry that many sales managers have wrong in their heads.

The customer does not pay. § 87a(2) HGB: if it is established that the third party will not perform, the claim lapses and amounts already received must be returned. The word that matters is “established”. An open invoice, an ongoing dunning run, an instalment agreement — none of that is established. Anyone who charges back across the board at the third dunning run is charging back too early.

The company does not deliver. § 87a(3) sentence 1 HGB reverses the direction: the claim also exists where it is established that the company does not perform the transaction, in whole or in part, or does not perform it as concluded. It lapses only if and to the extent that the non-performance is due to circumstances for which the company is not responsible. A delivery stop resulting from the company's own commercial decision, a withdrawn approval, a customer rejected after the fact: those are the company's own circumstances. The commission remains.

What cannot be negotiated away. § 87a(5) HGB declares agreements deviating from subsection 2 first half-sentence, subsection 3 and subsection 4 to the disadvantage of the commercial agent to be void. A clause that cancels the salesperson's commission even where the company itself fails to deliver therefore stands on very thin ice.

For salaried salespeople, largely the same applies via § 65 HGB: where commission has been agreed, § 87(1) and (3) as well as §§ 87a to 87c HGB apply. In insurance distribution, § 92(4) HGB expressly shifts the point in time later — there the claim arises as soon as the policyholder has paid the premium from which the commission is calculated.

Chargeback liability: what it costs when it is built sloppily

Chargeback liability makes sense — it is the reverse side of portfolio commission. But it needs a contractual basis, a period and a defined trigger. A model calculation with freely chosen figures, not a customer case:

Item	Assumption
Closing commission per contract	€400
Chargeback period	6 months, pro rata
Loss in month 2	Chargeback 4/6 = €267
Salesperson with 12 closes per month, 2 losses	€4,800 commission, €534 chargeback

What matters is not the percentage but the trigger. “Customer has cancelled” and “it is established that the customer will not perform” are two different states of affairs, and only the second is supported by § 87a(2) HGB. Anyone who mixes the two in one clause will have the clause thrown back at them in a dispute — and, until then, will have a sales force that distrusts every settlement.

In the hiring interview, this belongs in one sentence, not in a footnote: “Your closing commission arises once we have delivered. If the customer drops out within six months, we offset pro rata — and you get the chargeback notice before it is offset, not afterwards.”

The statement of account is not an attack

§ 87c(2) HGB gives the commercial agent, at settlement, a right to a statement of account covering all transactions for which commission is due to him under § 87 HGB. Subsection 3 adds the right to be informed of all circumstances material to the commission claim, its due date and its calculation. If the statement is refused or there are justified doubts about its accuracy or completeness, inspection of the business records may be demanded under subsection 4, at the principal's choice also by an auditor. Subsection 5 makes it clear: these rights cannot be excluded or restricted.

The request for it should be phrased matter-of-factly, otherwise it turns into a conflict that does not need to be one: “For the settlements of the last twelve months I would like a statement of account under § 87c(2) HGB — per transaction: customer, date of conclusion, date of performance, revenue, commission rate and status.”

For the company side, the sober insight is this: anyone who settles cleanly every month anyway and carries the performance dates along produces the statement of account at the push of a button. Anyone who fears it has a data problem, not a legal problem.

Action list

1. Name three dates separately in the commission section: conclusion of contract, performance, incoming payment — and define which one triggers the claim.
2. Check whether a deviation from § 87a(1) sentence 1 HGB has been agreed. If so: add the advance rule under sentence 2.
3. Align the chargeback trigger word for word with § 87a(2) HGB (“it is established that performance will not be made”), not with “customer cancels”.
4. Delete clauses that cancel the commission even where non-delivery is the company's own fault — § 87a(3) and (5) HGB.
5. Fix the settlement cycle in writing, at most three months, settlement by the end of the following month (§ 87c(1) HGB).
6. Make the performance date a mandatory field in the CRM. Without that field no statement of account can be produced.
7. Give chargeback notices to the salesperson before offsetting, with the chance to keep the customer.