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new customers shall be assessed as far can be done at the time of the
termination of the agency contract
8
.
Agent should be deprived of the commission
Another condition under which to claim goodwill indemnity is that
the agent should be deprived of the commission due to the termination
of the contract. The term “commission” does not refer to commissions
that arose during the agency contract, but to commissions due under
the contracts to be concluded with new customers after the termination
of the agency contract. Despite the termination of the contract, if any
remuneration has been paid to the agent, goodwill indemnity shall not
be claimed
9
.
Payment of this indemnity should be equitable
Within the framework of the conditions under which goodwill
indemnity may be claimed, we, lastly, point out the criterion for equi-
ty. Insofar as equity may not be considered as the sole reason to be
entitled to a goodwill indemnity without the fulfillment of the other
conditions, upon the fulfillment of the afore-mentioned conditions,
then equity shall be taken into consideration. The burden of proof is on
the principal when it should be proven that the claim of goodwill
indemnity is contrary to equity. In this respect, the characteristics of
the case at hand, and the provisions of the agency contract, shall be
taken into consideration. Similarly, while determining the amount of
the indemnity, brand awareness and power shall be also considered
within this scope
10
.
Calculation of the Indemnity
In accordance with Article 122/2 of the TCC, “
The amount of the
indemnity may not exceed a figure equivalent to the indemnity calcu-
lated from the agent’s average annual remuneration, or other remu-
neration paid over the preceding five years. If the agency contract con-
COMMERCIAL LAW
67
8
ARKAN Sabih
,
Ticari İşletme Hukuku
, Ankara, 2011, p. 222.
9
KAYA Ars
lan,
Türk Ticaret Kanunu Şerhi, Acentelik
, İstanbul, 2013, p. 243.
10
KAYA Arslan
,
Türk Ticaret Kanunu Şerhi, Acentelik
, İstanbul, 2013, p. 244-246.