{"id":101446,"date":"2025-11-29T00:31:04","date_gmt":"2025-11-28T23:31:04","guid":{"rendered":"https:\/\/www.ictrechtswijzer.be\/?p=101446"},"modified":"2025-11-29T00:39:41","modified_gmt":"2025-11-28T23:39:41","slug":"is-a-goodwill-fee-due-upon-termination-of-the-commercial-agency-due-to-exceptional-circumstances","status":"publish","type":"post","link":"https:\/\/www.ictrechtswijzer.be\/en\/is-een-uitwinningsvergoeding-verschuldigd-bij-beeindiging-van-de-handelsagentuur-wegens-uitzonderlijke-omstandigheden\/","title":{"rendered":"Is a goodwill fee due upon termination of the commercial agency due to exceptional circumstances?"},"content":{"rendered":"

When a commercial agency agreement<\/a> is terminated because the cooperation has become impossible (exceptional circumstances), this does not automatically mean that the commercial agent loses his right to an extraction fee. In a ruling of 29 April 2020, the Antwerp Court of Appeal confirmed that such a termination is not covered by the legal grounds for exclusion, unless there is a specific serious deficiency attributable to the agent. As long as the agent has brought clients from which the principal still enjoys benefits, the right to compensation remains in principle.<\/p>\n\n\n\n

The facts and context<\/h2>\n\n\n\n

The dispute in this case revolved around a 13-year long collaboration between a principal and a commercial agent. The cooperation broke down, after which the principal terminated the contract on the grounds of \u201cexceptional circumstances\u201d that made any professional cooperation permanently impossible.<\/p>\n\n\n\n

The principal believed that no goodwill fee was due, as the termination was allegedly due to the agent's conduct. The agent disputed this and claimed a goodwill fee equal to one year's compensation, including the fixed fees paid in addition to commissions<\/sup>.<\/p>\n\n\n\n

The key question before the Court was twofold:<\/p>\n\n\n\n

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  1. Does the right to a goodwill fee lapse when the contract is terminated due to \u201cexceptional circumstances\u201d (Art. X.17 CEL)?<\/li>\n\n\n\n
  2. May fixed fees be included in determining the amount of this compensation?<\/li>\n<\/ol>\n\n\n\n

    The Court's decision<\/h2>\n\n\n\n

    The Court of Appeals ruled in favor of the commercial agent on the essential points.<\/p>\n\n\n\n

    First, the Court noted that although termination for impossibility of cooperation (exceptional circumstances) was justified, this did not exclude the goodwill fee. Article X.18 CEL exhaustively enumerates when the compensation is not due, namely in the event of a \u201cserious breach\u201d by the agent. The Court held that while the circumstances in this case caused a breach, they could not be attributed solely to the agent as a serious default.<\/p>\n\n\n\n

    Second, the Court ruled on the calculation. The principal argued that the fixed fees should not count because they would be for \u201cengineering duties\u201d and not agency duties. The Court rejected this: the contract made no distinction and the fixed fee is an integral part of the agent's compensation<\/sup>. It must therefore be included in the calculation base<\/sup><\/sup>.<\/p>\n\n\n\n

    Ultimately, on the basis of fairness, the Court awarded a goodwill fee equal to six months of compensation<\/sup>.<\/p>\n\n\n\n

    Legal analysis and interpretation<\/h2>\n\n\n\n

    This decision of the Antwerp Court of Appeal provides an important nuance in commercial agency law, specifically with respect to Articles X.17 and X.18 of the Code of Economic Law (CEL)<\/a>.<\/p>\n\n\n\n

    The distinction between X.17 and X.18 CEL<\/strong> There is sometimes confusion about the concurrence between the termination<\/a> due to exceptional circumstances (Art. X.17 CEL) and the loss of the goodwill fee<\/a>. The Court clarifies that Article X.18, paragraph 5, 1\u00b0 CEL requires a strict interpretation. Only a termination due to a serious breach attributable to the agent results in forfeiture of compensation. \u201cExceptional circumstances\u201d (such as an irreparable breach of trust or quarrel) are not necessarily equivalent to a serious deficiency within the meaning of the grounds for exclusion.<\/p>\n\n\n\n

    The rebuttable presumption in competition clauses<\/strong> An interesting legal aspect in this case was the presence of a competition clause<\/a>. This triggers a legal presumption: the principal is deemed to still enjoy substantial benefits from the clientele brought in, subject to proof to the contrary. In this case, the principal failed to rebut this presumption, also considering the long duration of the cooperation (13 years) and the expansion of the business.<\/p>\n\n\n\n

    Definition of compensation (Art. X.7 CEL)<\/strong> The ruling confirms the broad interpretation of the term \u201cfee.\u201d All amounts received by the agent under the agreement - commissions as well as fixed fees - count toward the calculation of the goodwill fee, unless explicitly agreed otherwise or when it is clear that they cover costs unrelated to the intermediation<\/sup>.<\/p>\n\n\n\n

    What this specifically means<\/h2>\n\n\n\n

    This ruling has direct implications for the practice of both commercial agents and principals.<\/p>\n\n\n\n