Perjanjian agensi miturut hukum Walanda: aturan, klausul, lan pemutusan

An agency agreement is a contract under which a self-employed commercial agent (handelsagent) undertakes, against remuneration, to broker contracts for a principal and, if authorised, to conclude them in the principal’s name, without being subordinate to that principal. In the Netherlands the relationship is governed by articles 7:428 to 7:445 of the Dutch Civil Code (Burgerlijk Wetboek, BW), which implement EU Directive 86/653/EEC. Several of those provisions are mandatory: the statutory notice period, the goodwill indemnity and the limits on a post-contractual non-compete cannot be signed away to the agent’s detriment while the contract runs.

That combination is what makes an agency agreement deceptively simple. Appointing an agent is quick, cheap and reversible in commercial terms, but the moment the arrangement qualifies as an agentuurovereenkomst a protective statutory regime attaches to it automatically, whatever the parties have written down. This article sets out what that regime requires, which clauses you can still negotiate freely, how commission and notice actually work under Dutch law, and where the costs sit when the relationship ends.

What an agency agreement is under Dutch law

Article 7:428 paragraph 1 BW defines the agency agreement as a contract by which the principal instructs the agent, for a fixed or indefinite period and against remuneration, to mediate in the formation of contracts and, where applicable, to conclude those contracts in the principal’s name and for the principal’s account, without the agent being subordinate to the principal. Four elements therefore have to be present: mediation, a continuing rather than one-off assignment, remuneration, and independence.

That last element is what separates an agent from an employee. Subordination, fixed working hours, an obligation to work personally and the absence of entrepreneurial risk all push the relationship towards an employment contract, with the consequences that follow from dismissal protection and payroll taxes. Independence is also what separates the agent from a distributor: the agent never buys or resells, and never carries the stock.

Dutch law reaches further than the directive

Directive 86/653/EEC only covers agents who negotiate the sale or purchase of goods. Article 7:428 BW speaks of contracts without limitation, so under Dutch law an agent who brokers services — software subscriptions, transport capacity, insurance-adjacent products, advertising space — falls under the same protective regime. Foreign principals regularly get this wrong: they assume that because their agent sells services, the indemnity and notice rules do not apply. In the Netherlands they do. The one carve-out in article 7:428 paragraph 2 BW concerns agency relationships governed by the Financial Supervision Act (Wet op het financieel toezicht).

Form: nothing has to be signed, but a great deal should be

No written instrument is required. An agency agreement can arise orally or from a settled course of dealing, and courts do recognise it as such where the four statutory elements are met. Article 7:428 paragraph 3 BW gives each party the right to demand from the other a signed document setting out the content of the agreement as it then stands, which is a useful lever when a principal has been vague for years. Even so, the practical position is straightforward: everything that matters in an agency dispute — territory, exclusivity, commission percentage, targets, who introduced which customer — is a question of proof, and the party without documents loses it.

Who is bound, and by what

Mediating is not the same as signing. An agent who merely brokers brings the parties together; the principal then contracts with the customer directly. Only where the principal has granted a power of attorney (volmacht) can the agent conclude the contract in the principal’s name. If the agent exceeds that authority, the principal is in principle not bound, but the principal can still be held to the deal where its own conduct created the appearance that authority existed, and the customer reasonably relied on that appearance. Article 3:61 paragraph 2 BW is the provision that does the work here, and it is the reason why the mandate in the contract, the wording of the agent’s business card and the signature block on order forms all need to say the same thing.

The statutory framework: Book 7 BW and Directive 86/653/EEC

The agency rules sit in articles 7:428 to 7:445 BW, in the same title of the Civil Code as the contract of assignment. They implement Directive 86/653/EEC, which sets a floor rather than a ceiling: member states may protect agents more generously, and the Netherlands has done so on notice periods. Anyone drafting from an English-language precedent should therefore assume that the directive minimum is not the Dutch rule.

The protection also survives a choice of foreign law. In its Ingmar judgment of 2000 the Court of Justice of the European Union held that an agent carrying out its activities in a member state cannot be deprived of the indemnity and compensation provisions by choosing the law of a non-member state. A clause submitting the contract to the law of a third country therefore does not remove the Dutch agent’s claim; it usually just adds a conflict-of-laws argument to an already expensive dispute.

What is mandatory and what is not

The provisions that cannot be set aside to the agent’s disadvantage during the term of the agreement are, in practice, the ones that decide the size of the bill. They cover the statutory notice periods, the goodwill indemnity, the right to a periodic written statement of commission earned, the limits on a post-contractual restraint of trade, and the rule that the notice period the principal must observe may never be shorter than the agent’s. A waiver signed at the outset of the relationship does not help the principal; the parties may only depart from the indemnity rules once the agreement has come to an end.

What remains genuinely negotiable is the commercial architecture: whether the appointment is exclusive, sole or non-exclusive; the territory and the customer group; the commission percentage and any sliding scale; targets, reporting formats and audit rights; whether the agent may hold stock on consignment; and the forum for disputes. Draft those clauses as additions to the statutory regime rather than as substitutes for it. Wording that reads as an attempt to contract out of article 7:437 or 7:442 BW invites a court to strike it, and a struck clause usually takes the surrounding commercial bargain down with it.

Commission: when it is earned and when it must be paid

Article 7:431 paragraph 1 BW gives the agent a right to commission on contracts concluded during the term of the agency in three situations: where the contract came about through the agent’s intervention; where it was concluded with a customer the agent had previously introduced for a similar transaction; and where it was concluded with a customer belonging to the territory or customer group allocated to the agent, unless the parties expressly agreed otherwise. That third limb is the one principals overlook. If you grant an exclusive territory and then sell into it yourself, commission is due on those sales unless the contract says in terms that it is not.

The pipeline is protected as well. Under article 7:431 paragraph 2 BW the agent is entitled to commission on contracts concluded after the agency has ended, provided they are mainly attributable to work the agent did during the term and were concluded within a reasonable period after termination, or the order reached the principal or the agent before the end date. Where a successor agent has taken over, the commission is in principle owed to whichever of the two prepared the deal, with an equitable split if the circumstances justify one.

On payment, the Civil Code obliges the principal to provide the agent with a periodic written statement of the commission due, showing how it has been calculated, and the commission becomes payable at the moment that statement is given or ought to have been given. The agent may also require the principal to produce the underlying records needed to verify the statement. Late payment triggers the statutory commercial interest of article 6:119a BW. Rather than repeating the statute, use the contract to fix the practical variables the statute leaves open: what counts as net invoice value, how returns, credit notes and discounts are handled, and what happens to commission when the customer never pays.

The clauses a Dutch agency agreement needs

Most agency disputes that reach a Dutch court turn on three things: what the agent was actually allowed to do, how commission was calculated, and whether the termination was regular. A well-drafted agreement answers all three before they become contentious. The clauses below are the ones we would not sign without.

Scope of authority and territory

State whether the agent may only solicit and forward orders, or may also accept them in the principal’s name, and if so up to what value and on what standard terms. Define the product or service lines covered, the customer segments, and the geographic area, including any named house accounts that stay with the principal. Ambiguity here is expensive twice over: it exposes the principal to deals it never wanted, and it feeds the agent’s later argument that every customer in the region belonged to its territory for commission purposes.

Struktur komisi lan syarat pembayaran

Set out the percentage or scale, the base it is calculated on, and above all the trigger. Commission tied to customer payment is common and lawful, but it must be drafted consistently with the statutory rule that the entitlement arises from the conclusion of the contract; a clause that in substance denies commission on a validly concluded and performed transaction will not hold. Fix the statement cycle, the payment date, the treatment of partial deliveries, and the agent’s right to inspect the ledger. If you use targets, say explicitly whether missing them is a termination ground, a commission-scale trigger, or both.

Exclusivity, sole agency or non-exclusivity

These three models are frequently confused, and the difference decides whether the principal may keep selling into the territory itself.

Whichever model you choose, deal expressly with online sales. A webshop that ships into an exclusive territory is a direct sale, and if the contract is silent the agent has a serious argument that commission is due on it under article 7:431 paragraph 1 BW.

Duration, renewal and targets

A fixed-term agency ends by lapse of time without notice, but if the parties simply carry on afterwards it continues as an agreement for an indefinite period, and the statutory notice regime applies to it from then on. That transition catches out principals who believe a one-year contract renewed by conduct can still be ended on a month’s notice. If you want the option to stop early, say so: a fixed-term agreement can only be terminated during its term if the contract provides for it, and otherwise the party who walks away owes damages for the remainder.

Confidentiality, restraint of trade and intellectual property

Confidentiality over price lists, margins and customer data is uncontroversial and should be mutual. A post-contractual non-compete is not. Article 7:443 BW makes such a clause valid only where it is in writing and limited both to the kind of goods or services the agent represented and to the territory or the customer group entrusted to the agent, and paragraph 2 caps it at two years after the end of the agreement. Two further limits matter in practice. The principal cannot rely on the clause at all if it terminated irregularly, or if the agent terminated for an urgent reason for which the principal is to blame, or if a court dissolved the agreement on grounds attributable to the principal. And under paragraph 4 the court may set the clause aside wholly or in part where the agent is unfairly prejudiced in relation to the interest the principal is protecting. Separately, confirm that trade marks, product imagery and marketing collateral remain the principal’s, and that any Lisensi to use them ends with the agency.

Reporting, records and personal data

Require reporting on a fixed cycle in an agreed format, and give the principal a right to inspect the underlying records on reasonable notice. Because the agent handles contact details of the principal’s customers, allocate the data protection roles explicitly: decide whether the agent processes those data on the principal’s instructions, in which case a processing agreement under article 28 GDPR is required, or whether each party is an independent controller for its own purposes. Deciding this at the drafting stage is far cheaper than reconstructing it after a data breach.

Hukum lan forum sing ngatur

Choose Dutch law expressly, and remember that the mandatory agency provisions apply to an agent operating in the Netherlands in any event. On forum, note article 93 sub c of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): disputes concerning an agency agreement are heard by the subdistrict court (kantonrechter) regardless of the amount claimed, which means no mandatory legal representation and, generally, a faster and cheaper route than the ordinary civil chamber. Arbitration under the rules of the Netherlands Arbitration Institute is an alternative where confidentiality outweighs cost. A staged escalation clause, with a negotiation window and mediation before proceedings, often produces a vaststellingsovereenkomst (settlement agreement) and keeps the customer relationships intact.

What each party owes the other

Dutch law loads the relationship with duties on both sides, and a breach on either side changes what the other may do at the end. The agent must look after the principal’s interests with the care of a proper commercial agent: actively pursuing orders, passing on enquiries, complaints and payment warnings without delay, following reasonable instructions, and refraining from representing directly competing products without consent. Failure on these points is the raw material for a termination for urgent cause and for resisting an indemnity claim later.

The principal’s duties are less intuitive but just as enforceable. It must supply the documentation the agent needs — price lists, samples, technical specifications, general terms — and keep the agent informed of anything that materially affects the work, including a decision to reduce supply significantly below what the agent could reasonably expect. It must tell the agent within a reasonable time whether it accepts or rejects a transaction the agent has brokered, and it must render the periodic commission statement. Silence is not a neutral option: a principal who lets orders lapse without explanation weakens its own position on both notice and indemnity.

A del credere clause, under which the agent stands behind the customer’s performance, is permitted but tightly bounded. It must be in writing, it can only relate to identified transactions or transactions the agent itself concluded, and the agent’s exposure cannot exceed the commission on the transaction concerned unless a higher amount has been expressly agreed and the agent has a demonstrable interest in it. Treat it as an exception rather than a standard clause; an agent who bears credit risk on ordinary terms is close to being a distributor without the margin.

Ending an agency agreement correctly

Most of the money in agency law is at the exit. Article 7:437 BW governs ordinary termination of an agreement for an indefinite period, or a fixed-term agreement with an agreed right of interim termination. Where the parties have agreed nothing, the statutory notice period is patang wulan, increased by one month after three years and by two months after six years — so up to six months for a long-running relationship. This is markedly longer than the directive minimum, and copying that minimum into a Dutch contract is one of the most common drafting errors we see.

The parties may agree their own periods, but not below one month in the first year, two months in the second and three months in the following years, and any longer period agreed for the agent may not exceed the period binding the principal. Notice must be given against the end of a calendar month. A notice served on the tenth with three months stated therefore expires at the end of the fourth following month, not three months to the day.

A party that terminates without observing the correct period, and without the other’s consent, is liable in damages under article 7:439 BW unless it terminates for an urgent reason communicated to the other party immediately. The statutory measure of that liability is the remuneration the agent would have earned over the notice period that should have been observed, calculated on the basis of the preceding period; the injured party may instead claim its actual loss. Alongside this, article 7:440 BW allows either party to ask the subdistrict court to dissolve the agreement for an urgent reason or a change of circumstances of such a nature that the relationship should end at once or shortly.

Urgent reason is a high bar. It requires circumstances that make continuation unreasonable, such as fraud, structural non-payment, or serious and repeated breach after warning; disappointing turnover, on its own, is not one. Put the reason in writing on the day you rely on it and describe the facts precisely, because a court will test the stated ground and will not allow it to be improved later.

Goodwill indemnity under article 7:442 BW

The goodwill indemnity (klantenvergoeding) is the claim principals underestimate. Article 7:442 paragraph 1 BW gives the agent a right to compensation on termination where the agent brought the principal new customers, or significantly expanded existing customer relationships, where the principal still derives substantial benefit from those relationships, and where payment is equitable in all the circumstances, in particular the commission the agent loses. All three conditions must be met.

Paragraph 2 caps the indemnity at one year’s remuneration, calculated on the average of the last five years, or on the average over the whole duration where the agreement lasted less than five years. The Hoge Raad set out in 2012 how the assessment runs in practice: first quantify the benefit the principal retains, then test whether and to what extent an award is equitable in view of all the circumstances, and only then apply the statutory ceiling. The cap is not the starting point, and it is not a default entitlement.

Two limits deserve their own line. Under paragraph 3 the claim lapses if the agent has not told the principal that it wants the indemnity within one year of the end of the agreement, which makes a short letter the single most valuable step an outgoing agent can take. Under paragraph 4 no indemnity is due where the principal terminated for a reason for which the agent is liable in damages, where the agent itself terminated without that being justified by circumstances attributable to the principal or by the agent’s age, illness or invalidity, or where the agent transferred its rights and obligations to a third party with the principal’s agreement.

The indemnity is separate from post-termination commission and from damages for irregular notice. A principal who terminates a long-standing agency on short notice can face all three at once, which is why the exit deserves the same legal attention as the entry.

Agency, distribution or commission agency: choosing the model

The three routes to market look similar on a slide and behave very differently in law. Only agency carries the statutory indemnity and the mandatory notice regime; the other two are governed largely by what the parties agree, supplemented by the general rules of contract law and by good faith.

The absence of a statutory regime does not mean a persetujuan distribusi can be ended at will. Dutch courts derive a duty to observe a reasonable notice period, and sometimes to pay compensation, from the requirements of reasonableness and fairness, taking into account the duration of the relationship, the investments the distributor made and its dependence on the supplier. What you do not get is the calculable ceiling of article 7:442 BW, which cuts both ways: the outcome is less predictable for everyone involved.

Choose agency when price and brand control matter and you are willing to accept the indemnity risk; choose distribution when you want to shed inventory and credit risk and can live with less grip on pricing. The commission agency (commissieovereenkomst), in which the intermediary contracts in its own name for the principal’s account, sits between the two and is worth considering where the principal prefers not to appear towards the customer. Its accounting and VAT treatment is materially different from agency, so involve your tax adviser on that point before you commit; the choice of legal model and the fiscal consequences should be decided together, not sequentially. For a broader comparison of the contract types available, see our overview of jinis perjanjian komersial.

Using a template without getting caught out

A template is a reasonable starting point for a straightforward, domestic appointment between parties of comparable size. It is not a substitute for advice where the mandate is exclusive, spans several EU states, involves intellectual property or personal data, or where the expected commission stream is large enough that an indemnity claim would hurt.

Before you draft anything, collect the facts the contract has to fix: the exact legal names, Chamber of Commerce numbers and authorised signatories of both parties; the products or services covered, described precisely enough to define the non-compete later; the territory and any carved-out house accounts; the commission basis and rate; the reporting cycle; and the intended term. Missing information at this stage is what produces the vague wording that fails in court.

When you then work through the text, check it against the statutory floor rather than against the template’s own logic. Does the notice clause meet article 7:437 BW, and is the principal’s period at least as long as the agent’s? Does the non-compete stay inside the two-year limit and the subject-matter and territorial limits of article 7:443 BW? Does anything purport to waive the indemnity in advance? Is the commission trigger consistent with article 7:431 BW? Is Dutch law chosen, and the forum consistent with article 93 sub c Rv? In a cross-border appointment, add a bilingual version with a clear prevailing-language clause, specify the currency and who bears bank charges, and align delivery terms with the Incoterms version you actually use. Our notes on how to negotiate commercial terms and on what to check before you nandatangani kontrak cover the practical side of that process, and the general principles are set out in our guide to hukum kontrak ing Walanda.

Finally, resist the urge to lengthen the document for its own sake. A tight fifteen-page agency agreement that engages properly with articles 7:428 to 7:445 BW is worth more than forty pages of boilerplate copied from a jurisdiction whose rules do not apply.

Frequently asked questions about agency agreements

What is the purpose of an agency agreement

It gives an independent intermediary a defined authority to represent the principal in a market, and it fixes the commercial terms on which that happens: territory, exclusivity, commission, reporting and termination. For the principal it buys local reach without payroll; for the agent it secures a statutory right to commission, notice and, at the end, a possible goodwill indemnity.

Can an agency agreement be concluded orally

Yes. Dutch law imposes no form requirement, and an agency agreement can arise from conduct alone once the elements of article 7:428 BW are present. Either party may nevertheless demand a signed document recording the current terms. Without one, disputes about commission and territory come down to correspondence and invoices, which is a weak basis for a claim of any size.

Can the goodwill indemnity be excluded

Not in advance. The indemnity provisions may not be departed from to the agent’s detriment before the agreement has ended, so a waiver in the original contract has no effect. Deviation is possible once the relationship is over, which is why a properly drafted settlement at the exit is worth negotiating. The indemnity is also not owed in the situations listed in article 7:442 paragraph 4 BW, and it lapses entirely if the agent does not claim it within one year of termination.

Is my commercial agent an employee

Usually not, because the agent works without subordination and bears its own entrepreneurial risk. The assessment is made on the substance of the relationship as a whole rather than on the label in the contract: instructions on working hours, integration into the principal’s organisation, an obligation to perform personally and the absence of other clients all point towards an employment contract. Dutch legislation introducing a rebuttable presumption of employment below a statutory hourly rate has been adopted, with entry into force to be set by royal decree; until that moment the existing case law test applies.

Does an agency agreement have to be registered

No. There is no public register of agency agreements in the Netherlands. The agent registers its own business with the Chamber of Commerce (Kamer van Koophandel) as any entrepreneur does, and trade mark licences granted alongside the agency can be recorded separately in the relevant trade mark register.

Which court hears an agency dispute

The subdistrict court (kantonrechter), regardless of the value of the claim, under article 93 sub c of the Code of Civil Procedure. Parties may agree to arbitration instead. Claims for unpaid commission, damages for irregular termination and the goodwill indemnity are commonly brought together in one set of proceedings.

Agency arrangements are cheap to enter and expensive to leave badly. If you are appointing an agent, ending an appointment, or facing a claim for commission or a goodwill indemnity, the lawyers at Law & More can review the contract, assess the exposure and advise on the route with the best commercial outcome. Contact us to discuss your situation.