Национальные законы стран ЕС и Швейцарии об агентских договорах

Голландский Гражданский Кодекс

Положения Федерального кодекса обязательственного права Швейцарии об агентских договорах

Закон о Австрии о коммерческих агентах

Закон Бельгии о коммерческих агентских соглашениях

Закон Франции об отношениях между коммерческим агентом и принципалом

Закон Швеции о коммерческих агентских договорах

Закон Дании о коммерческих агентах и коммивояжерах

Положения Германского торгового кодекса об агентских договорах





Положения Германского торгового кодекса об агентских договорах

GERMAN COMMERCIAL CODE (Sect. 84 - 92c)

 (Параграфы 84 - 92c)

(на английском языке) 

❗️ Если в качестве применимого к агентскому контракту права избрано германское право, при разработке контракта и согласовании его условий необходимо учитывать нормы Германского торгового кодекса об агентских договорах

 

 Sect. 84 Definition of a Commercial Agent

 (1) A commercial agent is a person who, as an independent person engaged in business, is regularly entrusted to procure business for another person or entity engaged in business (principal) or to conclude business in his name. A person is independent if he is basically free to organize his activities and to determine his working schedule.

(2) (2) A person who, without being independent within the meaning of subsection 1, is regularly entrusted to procure business for a principal or to conclude business in his name, is deemed to be an employee.

(3) (3) The principal may also be a commercial agent.

(4) Sect. 85 Written Contract

Either party may require that the contents of the contract as well as any subsequent amendments thereto be recorded in a document signed by the other party. This right may not be excluded.

Sect. 86 Duties of the Commercial Agent

(1) The commercial agent shall endeavor to procure or conclude business; in doing so he shall safeguard interests.

(2) (2) He shall communicate the necessary information to the principal, and, in particular, notify him without undue delay of all business procured and concluded.

(3) (3) He shall attend to his duties with the care of a prudent merchant.

(4) (4) Agreements deviating from subsections 1 and 2 above shall be invalid.

(5) Sect. 86 a Duties of the Principal

(1) The principal shall place at the commercial agent's disposal the documentation necessary in the performance of his duties, such as samples, drawing, price-lists, advertising material and terms and conditions of business.

(2) (2) The principal shall give the commercial agent the necessary information. He shall notify the agent without undue delay of the acceptance or rejection of a business procured by the agent or concluded by him outside the scope of his authority to represent the principal, or of the non-performance of a business procured or concluded by the agent. The principal shall notify him without undue delay if it is probable that he can or will conclude business only in a significantly smaller volume than the commercial agent could expect under normal circumstances.

 (3) (3) Agreements deviating from subsections 1 and 2 above shall be invalid.

 (4) Sect. 86 b Doubtful-Debt Commission

 (1) If a commercial agent guarantees the fulfillment of the obligation arising out of a business, he may claim a special remuneration (delcredere commission). This right may not be excluded in advance. This responsibility may only be assumed for a specific business transaction or for business transaction with specific third parties which the agent procure or concludes. This undertaking must be in writing.

 (2) (2) The claim to delcredere commission arises with the conclusion of the business transaction.

 (3) (3) Subsection 1 does not apply, if the principal or third party has his place of business or, if none, his residence, abroad. Nor does it apply to business transactions for the conclusion and performance of which the commercial agent has unlimited authority.

(4) Sect. 87 Business for which Commission is Payable

(1) The commercial agent is entitled to commission for all business transactions concluded during the contractual relationship which are attributable to his activities or concluded which third parties whom he had acquired as customers for business transactions of the same kind. He has no claim for commission, if, and, to the extent that, pursuant to subsection 3 the commission is due to the preceding commercial agent.

(2) (2) If a specific district or specific group of customers has been assigned to the commercial agent, he is entitled to commission even for business transactions concluded without his involvement with persons in his district or from his group of customers during the contractual relationship. This does not apply if and to the extent that pursuant to subsection 3 the commission is due to the preceding commercial agent.

(3) (3) For a business concluded after termination of the contractual relationship the commercial agent is only entitled to commission if

(4) 1. he has procured or introduced and prepared the transaction in such a way that its conclusion is predominantly attributable to the performance of his duties and it is concluded within a reasonable period after termination of the contractual relationship, or

2. 2. the third party's offer to conclude a business in respect of which the commercial agent has a claim for commission pursuant to subsection 1, sentence 1 or subsection 2, sentence 1 is received by the commercial agent or the principal before termination of the contractual relationship.

3. The successor commercial agent shall be entitled to a proportion of the commission provided for under sentence 1 above, if, by virtue of the particular circumstances, an apportionment of the commission is equitable.

(4) In addition to the claim for commission for concluded business transactions the commercial agent is entitled to a debt collection commission for amounts collected by him in accordance with instructions.

(5) Sect. 87 a When Commission Falls Due

(1) The commercial agent is entitled to commission as soon as and insofar as the principal has completed the transaction. An agreement to the contrary may be made; however, upon completion of the business transaction by the principal, the commercial agent is entitled to a reasonable advance due not later than the last day of the following month. Irrespective of an agreement to the contrary the commercial agent is, nevertheless, entitled to commission as soon as and insofar as the third party has completed the transaction.

 (2) (2) Where it is clearly established that the third party will not perform, the claim for commission is lost; amounts already received shall be refunded.

 (3) (3) The commercial agent is also entitled to commission where it is clearly established that the principal does not carry out the business transaction in whole or in part or as agreed. Such claim shall not arise, if and to the extent that the principal?s non-performance is due to circumstances for which the principal is not responsible.

 (4) (4) The claim for commission falls due on the last day of the month in which the claim is to be accounted for pursuant to Sect. 87c, subsection 1.

 (5) (5) Agreements deviating from the provision contained in the first grammatical clause of section 2 and from sections 3 and 4 to the detriment of the commercial agent are invalid.

 Sect. 87 b Amount of Commission

 (1) If the rate of commission is not determined, the customary rate is deemed to have been agreed.

 (2) (2) The commission is to be calculated on the consideration payable by the third party or the principal. Discounts for cash payments are not to be deducted; the same applies to sales tax such as freight, packaging, customs duty and taxes, unless the incidental costs are charged separately to the third party. Value added tax shown separately on an invoice solely because of tax provisions is not considered to be charged separately.

 (3) (3) In case of fixed-term contracts for transfer of use and enjoyment, the commission shall be calculated on the consideration for the duration of the contract. In case of non-fixed-term contracts, a commission shall be calculated on the consideration up to the point in time at which the third party can first give notice of termination; if the contract continues, the commercial agent is entitled to further commission calculated accordingly.


⭐️ Продолжение ниже.

Посты

  • NostalgiNostalgi Staff
    ред: Декабрь 2019

    (4) Sect. 87 c Accounting for Commission

    (1) The principal must calculate the commission to which the commercial agent is entitled on a monthly basis at the most. The accounting shall be carried out without undue delay, at the latest by the end of the following month.

    (2) (2) When accounting takes place, the commercial agent may request production of an extract from the books in respect of all business transactions for which he is entitled to commission in accordance with sect. 87.

    (3) (3) In addition, the commercial agent may request information concerning any matter which is material to the claim for commission, its due date and calculation.

    (4) (4) If the extract from the books is refused, or, if reasonable doubt exists as to the correctness or completeness of the accounting or of the extract from the books, the commercial agent may require that, at the principal's option, either he or an auditor or certified accountant of his choice shall be entitled to inspect the business books or other documents so far as is necessary to establish the correctness or completeness of the accounting or of the extract from the books.

    (5) (5) These rights of the commercial agent may not be excluded or restricted.

    (6) Sect. 87 d Reimbursement of Expenditure

    The commercial agent may only require reimbursement of expenditure incurred in the ordinary course of business if this is customary within the trade.

    Sect. 88 Limitation of Claims

    The statute of limitations for the assertion of claims arising from the contractual relationship shall be four years, beginning from the completion of the year in which they fall due.

    Sect. 88 a Right of Retention

    (1) The commercial agent cannot waive his statutory rights of retention in advance.

    (2) (2) After termination of the contractual relationship, the commercial agent has, under the general law, a right of retention over materials placed at his disposal (Sect. 86 a subsection 1) only in respect of claims for commission which have fallen due and for reimbursement of expenditure.

    (3) Sect. 89 Termination of the Contract

    (1) Where the contractual relationship has been entered into for an indefinite period, it may be terminated during the first year of the contract by giving one-month notice, during the second year of the contract by two-month notice, and during the third to the fifth year of the contract by three-month notice. After the contract has run for five years, it may be terminated by giving six-month notice. Notice may only be given to the end of a calendar month, unless the parties have agreed otherwise.

    (2) (2) The periods of notice specified in subsection 1, sentences 1 and 2, may be extended by agreement; the period of notice to be given by the principal may not be shorter than that to be given by the agent. Where it has been agreed that a shorter period of notice is to be given by the principal than by the agent, the period of notice to be given by the agent shall nevertheless be deemed also to be the period of notice to be given by the principal.

    (3) (3) A contract entered into for a fixed term which is continued by both parties alter expiration of such fixed term shall be deemed to have been extended for an indefinite period. The total duration of the contractual relationship shall be taken as a basis for the purposes of determining the periods of notice pursuant to subsection 1, sentences 1 and 2.

    (4) Sect. 89 a Termination without Notice

    (1) Either party may terminate the contractual relationship such termination is justified by the good cause. This right may not be excluded or restricted.

    (2) (2) Where such termination is caused by conduct for which the other party is responsible, the latter must pay damages for loss resulting from termination of the contractual relationship.

    (3) Sect. 89 b Claim for Compensation

     

    (1) After termination of the contractual relationship the commercial agent may demand from the principal reasonable compensation if and insofar as:

    (2) 1. substantial advantages accrue to the principal, even after termination of the contractual relationship, from business relations with new customers recruited by the agent, and

    2. 2. by reason of termination of the contract, the commercial agent loses the right to commission which, has it continued, he would have had from business already concluded or to be concluded in the future with customers recruited by him, and

    3. 3. payment of compensation is equitable taking all the circumstances into account.

    4. A customer can be said to have been recruited if the commercial agent has so significantly increased business relations with a customer that this corresponds in commercial terms to the recruitment of a new customer.

    (2) Such compensation shall amount to not more than one year?s commission or other annual remuneration calculated on the basis of the average of the last five years? activities of the commercial agent; where the contractual relationship has been of shorter duration, the average during the period of activity is to be taken as the basis.

    (3) (3) Such claim shall not arise, if

    (4) 1. the commercial agent has terminated the contractual relationship, unless the conduct of the principal has given good cause for such termination, or, by reason of age or illness, the commercial agent could not reasonably be expected to continue his activity, or

    2. 2. the principal has terminated to contractual relationship for good cause justifying immediate termination by reason of fault on the part of the commercial agent, or

    3. 3. by agreement between the principal and the commercial agent a third party assumes the contractual rights and liabilities of the commercial agent in his stead; such agreement may not be concluded before termination of the contractual relationship.

    4. (4) This claim may not be excluded in advance. It must be asserted within one year of termination of the contractual relationship.

    (5) (5) Subsections 1, 3 and 4 apply to insurance agents with the provision that the concept of business connections with new customers recruited by the commercial agent is replaced by the concept of procurement of new insurance contracts by the insurance agent, and an insurance contract can be said to have been procured if the insurance agent has so significantly extended an existing insurance contract as to amount in commercial terms to the procurement of a new insurance contract. Notwithstanding subsection 2, the compensation payable to the insurance agent shall not amount to more than three years` commission or other annual remuneration. The provisions of sentences 1 and 2 shall apply mutatis mutandis to savings and loan associations agents.

    (6) Sect. 90 Business Secrets

    The commercial agent shall not exploit or divulge to others business secrets entrusted to him or which have become known to him through his activities for the principal, even after termination of the contractual relationship, insofar as this would be contrary to the business ethics of a prudent businessman taking all circumstances into account.

    Sect. 90 a Non-Competition Clause

    (1) An agreement which restricts the business activities of the commercial agent after termination of the contractual relationship (non-competition-clause) must be in writing and a document containing the agreed terms signed by the principal has to be supplied to the commercial agent. The agreement may not exceed two years from termination of the contractual relationship; it may extend only to the geographical area or group of customers allocated to the commercial agent and to the kind of goods in respect of which the agent is to procure or conclude business for the principal. The principal must pay to the commercial agent reasonable compensation for the duration of the restriction on competition.

    (2) (2) The principal may waive the restriction on competition at any time in writing before the end of the contractual relationship; this will result upon the expiration of six months from such a declaration in his being relieved of the obligation to pay compensation. If the principal terminates the contractual relationship for good cause by reason of fault on the part of the commercial agent, the commercial agent has no right to compensation.

    (3) (3) If the commercial agent terminates the contractual relationship for good cause by reason of fault on the part of the principal, he may free himself of the restriction upon competition by written declaration within one month of termination.

    (4) (4) Alternative agreements disadvantageous to the commercial agent may not be made.


    ⭐️ Продолжение ниже.

  • (5) Sect. 91 The Commercial Agent's Authority

    (1) Sect. 55 also applies to a commercial agent who has been given the authority to conclude business by a principal who is not a merchant.

    (2) (2) Even if a commercial agent is not authorized to conclude business transactions, he is deemed to be authorized to receive notices of defects in goods, declarations that goods are being made available and similar declarations whereby a third party asserts or reserves his rights arising from an inadequate contractual performance; he may assert the rights of the principal to preserve evidence. A limitation of these rights may only be asserted against a third party, if he knew or should have known thereof.

    (3) Sect. 91 a Lack of Authority

    (1) If a commercial agent who has only the authority to negotiate business, has concluded a business in the principal's name, and the third party did not know of the lack of authority, the principal is deemed to have given consent to the business unless he repudiates it via-a-vis the third party without delay after being informed by the commercial agent or third party of its conclusion and main contents.

    (2) (2) The same applies if a commercial agent who has the authority to conclude business, has concluded a transaction in the principal's name which he was not authorized to conclude.

    (3) Sect. 92 Insurance Agent and Savings and Loan Association Agent

    (1) An insurance agent is a person who is entrusted to procure or conclude insurance contracts as a commercial agent.

    (2) (2) The contractual relationship between the insurance agent and the insurer is governed by the provisions applicable to the contractual relationship between commercial agent and principal except for subsection 3 and 4.

    (3) (3) Notwithstanding sect. 87, subsection 1, sentence 1 an insurance agent is only entitled to commission for business which can be attributed to the performance of his duties. Sect. 87, subsection 2 does not apply to insurance agents.

    (4) (4) The insurance agent is entitled to commission (Sect. 87a, subsection 1) as soon as the insured has paid the premium on which the commission is calculated pursuant to the contractual relationship.

    (5) (5) The provisions of subsections 1 to 4 apply mutatis mutandis to savings and loan association agents.

    (6) Sect. 92 a Minimum Standards for Working Conditions

    (1) As regard the contractual relationship of a commercial agent who by contract may not represent other principals or for whom, due to the manner and scope of activity required of him this is impossible, the Federal Minister of Justice by agreement with the Federal Minister of Economics and Labor - after hearing associations of agents and principals - may prescribe, by regulations not requiring the consent of the Federal Council, the minimum contractual duties required of a principal to ensure that the necessary social and economic needs of such commercial agents or of a particular group of them are satisfied. The duties so prescribed may not be excluded or limited by contract.

    (2) (2) Subsection 1 also applies to the contractual relationship of an insurance agent who by reason of one or more agreements has the authority to negotiate and conclude business for several insurers belonging to a group of insurance concerns or to a joint organization of such concerns, if termination of the contractual relationship with one insurer would, in case of doubt, also result in termination of the contractual relationship with the other insurers. In this case it may also be determined, by regulations not requiring the consent of the Federal Council, whether the duties as prescribed are owed by all insurers jointly and severally or proportionately or by only one insurer, and how compensation should be allocated between them.

    (3) Sect. 92 b Part-time Commercial Agents

    (1) Sect. 89 and sect. 89b do not apply to part-time commercial agents. If the contractual relationship has been entered into for an indefinite period it may be terminated by giving one-month notice to become effective at the end of a calendar month; if a different notice period has been agreed, it must be the same for both parties. The right to claim a reasonable advance under sect. 87a, subsection 1, sentence 2 can be excluded.

    (2) (2) Subsection 1 may only be relied upon by a principal who has expressly entrusted the commercial agent with the negotiation or conclusion of business transactions as a part-time commercial agent.

    (3) (3) Whether the commercial agent is merely a part-time commercial agent is to be determined by reference to the generally accepted view.

    (4) (4) The provisions of subsections 1 to 3 apply mutatis mutandis to insurance agents and savings and loan association agents.

    (5) Sect. 92 c Commercial Agents Outside the European Union; Shipping Agents

    (1) If the activity of the commercial agent under his contract with the principal is not to be carried out within the territory of the European Union or the other contracting states of the convention on the European trading area, then all provisions of this chapter may be varied by agreement.

    (2) (2) The same applies if the commercial agent is entrusted with the procurement or the conclusion of business whose purpose is the chartering, making ready or fitting out of ships or the booking of passages on ships.

  • Aurora1990Aurora1990 Staff
    ред: 3 июн

    Голландский Гражданский Кодекс

    Dutch Civil Code

    Section 4 Agency agreement (Параграф 4 Агентский договор)

    (на английском языке)

    Если в качестве применимого к агентскому контракту права избрано право Нидерландов, при разработке контракта и согласовании его условий необходимо учитывать положения Голландского гражданского кодекса об агентском договоре

     


    By the act of 6 July 1989, S312, the Dutch Commercial Code was amended to conform to the EEC directive concerning independent commercial agents. Thereby it was laid down that as from 1 January 1994 said act would be applicable to agency agreements concluded prior to 1 November 1989.

    By the act of 27 May 1993 (most of) the provisions concerning the agency agreement previously laid down in the Dutch Commercial Code were moved to section 5 of part 7 Book 7 of the Dutch Civil Code.

     It should be borne in mind that a number of provisions is laid down in section 1 of part 7 and section 3 of part 7 Book 7 of the Dutch Civil Code.

    Article 428 Description

    1. The agency agreement is an agreement whereby one party, the principal, charges the other party, the commercial agent, which the latter undertakes, for a definite or indefinite period of time and for a remuneration, to act as intermediary in the realization of contracts and possibly to conclude such contracts in the name and for the account of the principal, without the latter exercising authority over it. 2.

    The provisions of this section are not applicable to agency agreements to which the Wet Assurantiebemiddelingsbedrijf (Insurance Agency Business Act) is applicable. 3.

    Either party is obliged to provide to the other party at its request a signed document representing the then effective contents of the agency agreement. 

    Article 429 Delcredere clause

    1. The commercial agent can only hold itself liable for obligations of third parties ensuing from a contract negotiated or concluded by it if such liability is laid down in writing. 2.

    Unless otherwise agreed upon in writing, the commercial agent shall exclusively be liable for the solvency of a third party pursuant to a delcredere clause. 3.

    The commercial agent cannot hold itself liable for an amount exceeding the commission agreed upon, unless the clause concerns a certain contract or contracts concluded by itself in the name of the principal. 4.

    If the risk to which the commercial agent has committed itself is manifestly disproportionate to the commission agreed upon, the court may reduce the amount for which the commercial agent is liable to the extent that such amount exceeds the commission. The court takes all circumstances into account, in particular the manner in which the commercial agent has protected the interests of the principal. 

    Article 430 Obligations of the principal

    1. The principal shall do everything required to be done on its part in the prevailing circumstances to enable the commercial agent to conduct its activities. 2.

    It shall put the documentation required concerning the goods and services for which the commercial agent negotiates contracts and provide to it all the information required for performing the agency agreement. 3.

    It is obliged to alert the commercial agent without delay if it foresees that the volume of contract that will or may be concluded will be significantly smaller than the commercial agent could have expected. 4.

    It shall inform the commercial agent within a reasonable period of time of its acceptance, refusal or non-execution of a contract which the commercial agent has negotiated. 

    Article 431 Right to commission

    1. The commercial agent is entitled to commission on the contracts realized during the term of the agency agreement: a)

    if the contract has been concluded owing to its intervention; b)

    if the contract has been concluded with a person which it has acquired as a customer earlier for a similar contract; c)

    if the contract has been concluded with a person belonging to the clientele or established in the geographical area which has been allocated to the commercial agent, unless it has been explicitly agreed that the commercial agent does not have the exclusive right in respect of such clientele or in such geographical area. 2.

    The commercial agent is entitled to commission for the preparations for contracts realized after termination of the agency agreement: a)

    if such contracts are concluded mainly owing to activities performed by it during the term of the agency agreement and have been concluded within a reasonable period from termination of the agreement, or b)

    if, in conformity with the conditions referred to in the first paragraph, the order from the third party has been received by the principal or by the commercial agent prior to termination of the agency agreement. 3.

    The commercial agent is not entitled to commission if, pursuant to the second paragraph, such commission is payable to its predecessor, unless it ensues from the circumstances that it is fair to divide the commission between them. 

    Article 432 Right to commission and acting as intermediary

    1. If the role of the commercial agent was limited to acting as intermediary in realizing the contract, the order supplied by it to its principal shall be deemed to have been accepted in respect of the right to commission pursuant to article 426, unless the principal informs the commercial agent within a reasonable period of time, referred to in article 430 paragraph 4, that it reuses the order or makes a reservation. Failing a period of time stipulated in the agency agreement, the period shall be one month from the time when the order was communicated to it. 2.

    The condition causing the right to commission to depend on the performance of the contract must be explicitly laid down. 3.

    If the condition referred to in the second paragraph has been laid down, the right to commission is created at the latest when the third party has performed its part of the contract or should have done so, if the principal had performed its part of the contract. 

    Article 433 Obligation of the principal to provide a statement

    1. After expiration of each month the principal is obliged to provide a statement to the commercial agent of the commission payable for that month, specifying the details on the basis of which the calculation was made; said statement must be provided prior to the expiration of the subsequent month. Parties may agree in writing that the statement is provided every two or three months. 2.

    The commercial agent has the right to demand inspection of the relevant documents from the principal, however without having the right to demand them to be surrendered. At its expense it may cause itself to be assisted by an expert accepted by the principal or, in case of rejection, appointed by the president of the competent court at the request of the commercial agent. 3.

    Parties may however agree in writing that a third party may inspect the relevant documents; if the latter does not perform its duty, the president of the court will appoint a substitute. 4.

    Submission of the relevant documents by the principal takes place under the obligation of secrecy by the commercial agent and the persons referred to in the preceding paragraphs. However, the latter are not obliged to observe secrecy in respect of the commercial agent as far as information referred to in the first paragraph is concerned. 

    Article 434 Time commission falls due

    The commission falls due at the time when the written statement referred to in article 433 must be provided at the latest. 

    Article 435 Right to remuneration

    1. The commercial agent is entitled to a remuneration if it is prepared to fulfil its obligations ensuing from the agency agreement or has already fulfilled them, but the principal has availed itself of the services of the commercial agent not at all or to a substantially lesser extent than the latter could have expected to be normal, unless the principal's conduct ensues from circumstances for which in reason it is not liable. 2.

    In determining such remuneration the amount of the commission earned in the preceding period is taken into account as well as all other relevant factors to be taken into account, such as the expenses not incurred by the commercial agent by not conducting activities.

  • Article 436 Renewal for indefinite period of time

    An agency agreement which is renewed by both parties after expiration of the term for which it was concluded shall be binding upon parties for an indefinite period of time under the same conditions.

    Article 437 Right to termination of parties

    1. If the agency agreement has been concluded for an indefinite period of time or for a definite period of time with the right of premature termination, either party shall have the right to terminate the agreement observing the period of notice agreed upon. Failing a relevant agreement, the period of notice shall be four months, increased by one month after a three-year term of the agreement and by two months after six years.

    Period of notice

    2. The period of notice shall not be shorter than one month in the first year of the agreement, two months in the second year and three months in the subsequent years. If the parties agree upon longer periods of notice, such periods must not be shorter for the principal than they are for the commercial agent. 3.

    Notice of termination should be given towards the end of a calendar month.

    Article 438 Termination of agency agreement

    1. The agency agreement is terminated by the decease of the commercial agent. 2.

    In the event of the decease of the principal, both its heirs and the commercial agent shall have the right to terminate the agreement, provided that such is effected within nine months from the decease, observing four months' notice.

    Article 439 Irregular termination

    1. The party which terminates the agreement without observing its term or without observing the legal period of notice or the period of notice agreed upon and without the other party agreeing thereto shall be liable for damages, unless it causes the agreement to terminate for an urgent reason communicated to the other party without delay. 2.

    Urgent reasons are circumstances of such a nature that it cannot be demanded in reason from the party terminating the agreement to continue the agreement, even temporarily. 3.

    If termination of the agreement for an urgent reason is based on circumstances for which the other party is to blame, the latter shall be liable for damages. 4.

    A clause in which the decision whether an urgent reason exists is left to either party shall be null and void.

    Article 440 Rescission by the subdistrict court

    1. Either party has the right the request the subdistrict court to rescind the agency agreement on the grounds of: a) circumstances which produce an urgent reason in the sense of article 439 paragraph 2; b) a change in the circumstances of such a nature that fairness demands that the agreement is terminated without delay or in the near future. 2.

    If the court pronounces rescission on the grounds of a circumstances as referred to in the first paragraph sub a and if the defendant may be blamed for such circumstance, the latter shall be liable for damages. 3.

    If the court pronounces rescission pursuant to the provision in the first paragraph sub b, it may award an indemnity to one of the parties. It may decide that such indemnity is paid in instalments. 4.

    The fifth, sixth, seventh, ninth, tenth and eleventh paragraphs of article 1639w of Book 7A are applicable mutatis mutandis.

    Article 441 Extent of liability for damages 1.

    By the party which is liable for damages pursuant to article 439 or article 440 paragraph 2A, a sum is payable to the other party equal to the remuneration for the period the agency agreement should have continued in case of regular termination. For determining said sum the commission earned in the preceding period is taken into account as well as all other relevant factors to be taken into account. 2.

    The court has the right to reduce said sum if it deems it to be too high in view of the circumstances. 3.

    Instead of the damages referred to in the preceding paragraphs, the injured party may claim full compensation of its loss, subject to its obligation to prove the extent thereof.

    Article 442 Compensation for goodwill

    1. On termination of the agency agreement, without prejudice to its right to claim damages, the commercial agent is entitled to an indemnity, goodwill, in so far as: a)

    it has acquired new customers for the principal or it has considerably extended the contracts with existing customers and the contracts with such customers still yield substantial gains to the principal, and b)

    payment of such indemnity is fair, considering all circumstances, in particular the commission from the contracts with such customers which is lost by it. 2.

    The amount of the indemnity shall not exceed that of one year remuneration calculated on the basis of the average remuneration in the preceding five years or, if the term of the agreement was less than five years, on the basis of the average of its total term. 3.

    The right to indemnity shall be forfeited if the commercial agent has not notified the principal that it demands an indemnity within one year from termination of the agreement. 4.

    The indemnity is not payable if the agreement has been terminated: a)

    by the principal in circumstances rendering the commercial agent liable for damages pursuant to article 439 paragraph 3; b)

    by the commercial agent, unless such termination is justified by circumstances for which the principal is to blame or is justified by age, disablement or illness of the commercial agent on the grounds of which it can no longer be demanded from it in reason to continue its activities; c)

    by the commercial agent which, in conformity with an agreement with the principal, transfers its rights and obligations ensuing from the agency agreement to a third party.

    Article 443 Non-competition clause

    1. A clause restricting the freedom of the commercial agent to conduct business operations after termination of the agency agreement is valid only if;

    a) it is applicable to the type of goods and services of which it had the agency and to the geographical area, or the clientele and the geographical area, entrusted to it.

    2. Such clause shall only be valid for two years maximum from termination of the agreement.

    3. The principal cannot derive any rights from such clause if the agency agreement was discontinued:

    a) by the principal terminating it without the consent of the commercial agent without observing the legal period of notice or the period of notice agreed upon and without an urgent reason of which it has notified the commercial agent without delay;

    b) by the commercial agent terminating it for an urgent reason of which it has notified the principal without delay and for which the latter is to blame;

    c) by a decision of the court, based on relevant circumstances for which the principal is to blame. 4.

    At the commercial agent's request the court may declare such clause to be null and void in full or in part on the ground that, in proportion to the principal's interest to be protected, the commercial agent is injured unfairly by the clause. 

    Article 444 Period of prescription

    Legal claims based on articles 439 and 440 become prescribed by one year having elapsed from the date of the fact from which the claim arose.

    Article 445 Applicability article 445

    1. Parties cannot derogate from articles 401, 402, 403 and 426 paragraph 2 and neither from articles 428 paragraph 3, 429, 430, 431 paragraph 2, 432 paragraph 2, 433, 437 paragraph 2, 439, 440, 441, 443 and 444. 2.

    Neither can articles 432 paragraph 3, 434 and, prior to termination of the agreement, article 442 be derogated from to the detriment of the commercial agent.

  • spaider80spaider80 Staff
    ред: 3 июн

    Положения Федерального кодекса обязательственного права Швейцарии об агентских договорах

    Swiss Code of Obligations

    (Art. 418a - 418v)

    Если в качестве применимого к агентскому контракту права избрано право Швейцарии, при разработке контракта и согласовании его условий необходимо учитывать положения Федерального кодекса обязательственного права Швейцарии об агентских договорах.

     

    Art. 418a (1)

    An agent is a person who obligates himself to act on a continuous basis as an intermediary on behalf of one or several principals in business transactions (Art. 412), or to conclude such transactions in their name and for their account without being in an employment relationship with such principals (Art. 319 ss). (2)

    For agents who exercise this activity only as a secondary occupation, the provisions of this chapter are applicable to the extent that the parties have not agreed upon otherwise in writing (Art. 12-15). The provisions regarding delcredere (Art. 418c, subsect. 3), prohibition against competition (Art. 418d, subsect. 2), and termination of contract for valid reasons (Art. 418r) may not be dispensed with to the detriment of the agent.

    Art. 418b

    In addition, the provisions concerning the brokerage contract (Art. 412 et seq.) are also applicable to the agent who acts as intermediary in business transaction for third persons, and those regarding the commission contract (Art. 425 et seq.) are applicable to the agent who concluded business transactions on behalf of third persons.

    Art. 418c (1)

    The agent must safeguard the interest of his principal with the care of an ordinary merchant. (2)

    He may also, unless otherwise agreed upon in writing (Arts. 12-15), act on behalf of other principals. (3)

    The agent's obligation to guarantee payment or any other fulfillment of the customer?s liabilities (Art. 430, 418a, para. 2), or to bear fully or partially the costs of collecting claims, can only be agreed upon in writing. In such event, the agent has an inalienable right to an adequate special compensation (Art. 430, para. 2).

    Art. 418d (1)

    The agent may not exploit or inform others of business secrets (Art. 340, para. 1) with which he gas been entrusted, or of which he has obtained knowledge in the course of his agency relationship, including the use or disclosure even after termination of the contract (Art. 324a, para. 4). (2)

    The rules regarding employment contracts (Art. 340, 340c) are applicable accordingly to a contractual prohibition against competition (Art. 418a, para. 2). If a prohibition against competition is stipulated, the agent has an inalienable right (Art. 418a, para. 2) to an adequate special compensation upon termination of the agency contract.

    Art. 418e (1)

    The agent is deemed only to have the authority to act as an intermediary in business transaction, to receive notices and other declarations of defect or non-performance by which the customers asserts his right arising out of faulty performance by the principal, or reserves such rights, and to exercise the principal's rights to secure evidence thereof. (2)

    The agent is not, however, deemed to have the authority to accept payments, to grant terms of payment, or to agree with the customers upon other alterations of the contract. (3)

    Unaffected thereby are Articles 34 and 44, paragraph 3 of the Federal Act on Insurance Contracts, of April 2, 1908. 

    Art. 418f (1)

    The principal must perform all acts necessary to enable the agent to successfully perform his functions (Art. 91). In particular, he must put he necessary documents at the agent's disposal (Art. 418m, para. 1). (2)

    He must immediately inform the agent if he anticipates that a considerably lower volume of business can or should be concluded than was agreed upon or expected under the circumstances (Art. 418m, para. 1). (3)

    If a certain territory or a predetermined clientele has been allocated to the agent, he has exclusivity, unless otherwise agreed upon in writing (Arts. 12-15).

    Art. 418g (1)

    The agent is entitled to the agreed upon or customary brokerage of signing commission on all business transactions in which he acted as intermediary (Art. 413), or which were concluded (Art. 418t) during the term of the agency agreement (Art. 418t), and, unless otherwise agreed upon in writing, on such business transaction which were concluded during the duration of the agency agreement by the principal without the agent's cooperation, provided that the agent has solicited the third person as a customer for business transactions of such kind. (2)

    The agent, to whom a certain territory or a certain clientele is exclusively allocated (Art. 418f, para. 3), is entitled to the agreed upon commission, or in the absence of an agreement to the customary commission, on all business which is concluded with customers in that territory or of that clientele during the term of the agency contract. (3)

    Unless otherwise agreed upon in writing, the claim for a commission arises as soon as the business transaction with the customers is legally concluded (Art. 413, paras. 1, 2).

    Art. 418h (1)

    The agent loses his claim for a commission to the extent that the performance of a concluded business transaction does not occur for reasons for which the principal is not responsible. (2)

    The claim for commission, however, becomes fully extinct, if the performance by the third party, in consideration of which the principal has already performed, does not occur, or fails to such a substantial extent that the principal cannot reasonably be expected to pay a commission.

    Art. 418i

    Unless otherwise agreed upon or customary, the commission becomes due at the end of the calendar half year during which the business was concluded. In the insurance business, however, payment is due in conformity with the time for payment of the first annual premium (Art. 75).


    ⭐️Продолжение ниже.

  • SergSlSergSl Member, Staff

    Art. 418k (1)

    If the agent is nit obligated by written agreement (Arts. 12-15) to submit a statement of account on commissions, the principal shall submit to him a statement of account in writing on each due date (Art. 418i), indicating the business transactions upon which a commission is due. (2)

    Upon request, the agent is entitled to inspect the company books and vouchers relevant to the statement of account (Art. 322c). The agent may not waive this right in advance. (3)

    Art. 418l (1)

    Unless otherwise agreed upon or customary, the agent has a claim for a collection commission for amounts collected and remitted in accordance with instructions received (Art. 418e, para.2). (2)

    Upon termination of the agency relationship, the agent's authority to collect, and his claim to a further collection commission, ceases.

    Art. 418m (1)

    The principal must pay the agent an adequate compensation if he is at fault, in breach of his legal (Art. 418f) or contractual obligations, for preventing the agent from earning the commission to the extent agreed upon or to the extent to be expected under the circumstances (Art. 91). An agreement to the contrary is invalid. (2)

    If an agent, who is prohibited from simultaneously representing another principal, is prevented without fault from performing his function (Art. 324a) due to illness, compulsory Swiss military service, or similar reasons, he is entitled to adequate compensation for a relatively short period of time (Art. 324) in relation to the loss of earnings sustained, provided that the agency relationship has lasted for a minimum period of one year. The agent may not waive his right in advance.

    Art. 418n (1)

    Unless otherwise agreed upon or customary, the agent has no claim for the reimbursement of costs and expenses incurred in the ordinary course of his business, with the exception of those which he has incurred upon special instructions of the principal, or as his agent without mandate (Art. 419 et seq.), such as expenses for freight and customs duties. (2)

    The obligation to reimburse is independent from the conclusion of the legal transaction.

    Art. 418o (1)

    As a guarantee for claims due which arise under the agency relationship, and, in the event of insolvency of the principal, also for claims not yet due, the agent has the right of retention on all movable property and financial instruments which are in his possession pursuant to the agency relationship as well as on amounts received from third parties (Art. 418e, para. 2) pursuant to an authority to collect. The agent may not waive his right of retention in advance. (2)

    Such right of retention cannot be exercised on price lists or on lists of customers.

    Art. 418p (1)

    If the agency contract was concluded for a determined period of time, or if such period can be deduced from its purpose, the agency contract is terminated without further notice upon the expiration of such period. (2)

    If an agency contract with a determined period of time is continued by both parties by tacit consent after expiration of such period, the contract is deemed to have been renewed for the same period of time, but not for longer than one year. (3)

    If notice is required to terminate the contract, its omission by both parties is deemed to be a renewal of the contract (Art. 418p, para. 2).

    Art. 418q (1)

    If an agency contract was not concluded for a determined period of time, and if such period cannot be deduced from its purpose, it can be terminated by either party during the first year of the contract period effective as of the end of a calendar month (Art. 336a) following the month during which notice was given. An agreement for a shorter period of notice must be in writing (Arts. 12-15). (2)

    If the contractual relationship has lasted for a period of at least one year (Art. 336b), it may be terminated as of the end of a calendar quarter by giving two months? notice. The parties may agree, however, upon a longer notice period, or upon another termination date. (3)

    No agreement shall provide for different notice periods for principal and for agent (Art. 336, para. 2).

    Art. 418r (1)

    For valid reasons, either the principal or the agent may, without notice, immediately terminate the contract (Art. 337, 418a, para 2). (2)

    The provisions regarding the employment contract are applicable accordingly (Art. 337 et seq.).

    Art. 418s (1)

    The agency contract terminates with the death of the agent, or his legal incapacity, or with the bankruptcy of the principal. (2)

    Upon the death of the principal, the agency contract terminates if the mandate was entered into essentially with regard to the individual who acted as principal (Art. 338a, para. 2).

    Art. 418t (1)

    Unless otherwise agreed upon or customary, the agent has a claim for commissions only for subsequent orders received prior to the termination of the agency relationship, and made by customer who was solicited (Art. 418g) by the agent during the period of the agency relationship. (2)

    All claims of the agent for commissions or compensation become due with the termination of the agency relationship. (3)

    For business transactions which are to be completed in whole or in part only after termination of the agency relationship, parties may agree in writing (Arts. 12-15) on a later due date for the commission.

    Art. 418u (1)

    If the agent, through his activity, has substantially increased the principal?s clientele, and if, even after termination of the agency relationship, the principal of his successor in title benefits substantially from the business relations with the acquired clientele, the agents or his heirs have an inalienable right to an adequate compensation to the extent that such compensation is not inequitable. (2)

    This claim shall not exceed the net earnings for one year derived from this contractual relationship, computed on the average of the last five years, or if the relationship has not existed for so long, then on the average of the total of such period. (3)

    No claim exists if the agency relationship was terminated for a reason for which the agent was responsible.

    Art. 418v

    On the date of termination of the agency relationship, each contracting party shall make restitution to the other party for everything it has received during the contractual period from the other party of from third parties on account of the other party. Unaffected thereby are the rights of retention of the contracting parties (Art. 418o).

  • SergSlSergSl Member, Staff
    ред: Декабрь 2019

    Федеральный закон Австрии о правовом статусе независимых коммерческих агентов

    Federal Austrian Law regarding the legal status of self-employed Commercial Agents

    Law on Commercial Agents (short title)

    Если в качестве применимого к агентскому договору права избрано австрийское право, при разработке договора и согласовании его условий необходимо учитывать положения Закона о коммерческих агентах.



    The Austrian National Assembly has passed the following resolution:

    Definition and activity of a Commercial Agent

    Definition of the term self-employed Commercial Agent

    §1. (1) A Commercial Agent shall mean a person who has been granted continuing authority by another person (hereinafter called the "Principal") to negotiate or conclude transactions, except for transactions involving immovable property, on behalf of and in the name of that Principal and who performs this activity on a self-employed and commercial basis.

    (2) The Principal may also be a Commercial Agent.

    (3) Conclusion of transactions by the Commercial Agent

    §2. (1) The Commercial Agent may only conclude transactions on behalf of and in the name of the Principal if he is authorized so to do.

    (2) If a Commercial agent who only has authority to negotiate transactions concludes a transaction with a third party in the name of the Principal, the said Principal will be deemed to have authorized the transaction if he does not notify the third party that he repudiates the transaction immediately after he has become aware of conclusion of the transaction.

    Authority of the Commercial Agent

    §3. (1) The Commercial Agent may only accept payments for the Principal if he is authorized to do so.

    (2) If the authority includes the entitlement to accept payments, the Commercial Agent will only be deemed to be authorized to receive payments which are in accordance with the agreed conditions. Such entitlement shall not, on the other hand, include the authority to amend the terms of payment agreed on conclusion of the transaction, and in particular the right to effect compromises or grant discounts.

    (3) If the activity of the Commercial Agent includes travelling, he shall also be authorized to collect the purchase price arising from the sales concluded by him or to authorize payment deadlines therefor.

    (4) Notification of defects in a product, statements that a product is being made available and other statements by means of which customers protect their rights may also be made to the Commercial Agent.

    (5) The Commercial Agent shall be entitled to exercise the right falling to the Principal to ascertain the condition of the goods; he shall not be entitled to dispose of the goods when in doubt unless the condition thereof makes this urgently necessary.

    (6) A third party shall only be required to accept the assertion against him of restrictions on the authority of the commercial Agent if he was, or must have been, aware of such restrictions.

    Rights and obligations of the Principal and of the

    Commercial Agent Instruments

    §4. The Principal and the Commercial Agent shall be obliged to provide the other party, at the request of the latter, with a signed instrument which contains the text of the agency agreement which is valid at that time.

    Obligations of the Commercial Agent

    §5. The Commercial Agent shall be obliged to endeavor to negotiate or conclude transactions. In performing his activities, he must look after the Principal`s interests, showing the care of a prudent businessman, and shall, in particular, be obliged to notify the Principal of the necessary information and to inform the Principal of every transaction which he has concluded for the Principal.

    Obligations of the Principal to provide support

    §6. (1) The Principal must support the Commercial Agent in the exercise of his activity.

    (2) The Principal must in particular:

    (3) 1. place the necessary documentation at the disposal of the Commercial Agent and provide him with all the information necessary for the performance of his activity,

    2. 3. inform the Commercial Agent immediately if he foresees that the scope of transactions will be much smaller than the Commercial Agent might have expected from the circumstances, and in particular on the basis of the previous scope of business or the information provided by the Principal,

    4. 5. to inform the Commercial Agent immediately of acceptance or repudiation of a transaction which has been negotiated or concluded without authorization or of the non-execution of a transaction negotiated or concluded by him.

    6. Prohibition on the acceptance of recompense

    §7. (1) In the absence of any contrary trade practice in the line of business in question, the Commercial Agent may not, without the consent of the Principal, accept recompense from the third party with whom he concludes or negotiates transactions for the Principal.

    (2) The Principal may require the Commercial Agent to hand over the unlawfully received recompense and to make good any damage in excess of this amount.

    Remuneration, commission

    §8. (1) Remuneration of the Principal may take the form of a commission or another consideration.

    (2) To the extent that no other agreement has been reached, commission is to be due to the commercial Agent as Remuneration for each transaction which is brought about as a result of his activity. If no contrary trade practice exists in the line of business in question, no right to commission is acquired simply by naming the third party.

    (3) In case of doubt, the Commercial Agent shall also have due to him commission for such transactions which are concluded without his direct intervention during the period of existence of the contractual relationship between the customers assigned to him or supplied by him and the Principal.

    (4) If the Commercial Agent is expressly appointed as the sole agent for a certain area or for a certain group of customers, there will also be due to him, in case of doubt, commission for transactions which have been concluded without his intervention during the period of existence of the contractual relationship by the Principal or for the latter with the customers pertaining to the area or to the group of customers assigned to the Commercial Agent.

    Accrual of the claim for commission

    §9. (1) The claim for commission shall arise when the transaction negotiated between the Principal and the third party becomes legally valid, if and to the extent that

    1. the Principal has executed the transaction

    2. or

    2. the Principal should have executed the transaction under the contract with the third party

    3. or

    3. the third party has executed the transaction by making payment.

    4. (2) The claim for commission shall arise at the latest when the third party has executed his part of the transaction or would have done so if the Principal had executed his part of the transaction.

    (3) The claim for commission shall cease to be valid if and to the extent that it is ascertained that the contract between the third party and the Principal is not being executed and this is due to circumstances which are the fault of the Principal. In the event of a delay in payment on the part of the third party, the Principal must, however, demonstrate that all reasonable steps have been taken to make the third-party effect payment.


    ⭐️ Продолжение ниже.

  • OllafsonOllafson Staff
    ред: Декабрь 2019

    Level of commission

    §10. (1) In the absence of any other agreement, the level of commission shall be based on the rates customarily allowed for the line of business in question in the place of business of the Commercial Agent.

    (2) Discounts which the Principal has granted to the third party may not be deducted when the commission is calculated unless they were agreed when the transaction was concluded or there is a trade practice to this effect in the line of business in question. Discounts for payment in cash are under no circumstances to be deducted; this also applies to incidental expenses, in particular to freight, packaging, customs duties or taxes unless the incidental expenses have been specially charged to the third party. Turnover tax which is shown separately in the invoice solely because of the tax regulations in force is not considered to have been specially charged.

    Commission after termination of the contractual relationship

    §11. (1) Commission shall be due to the Commercial Agent for transactions brought about after termination of the contractual relationship if and to the extent that

    1. the transaction is mainly attributable to his efforts during the period covered by the contract and conclusion occurred within a reasonable period after termination of the contractual relationship

    2. or

    2. a binding statement by the third party that he intended to conclude the transaction was received by the Commercial Agent or the Principal before the contractual relationship was terminated.

    (2) A subsequent Commercial Agent has no claim for commission if this is due to his predecessor, unless the circumstances justify sharing of the commission between him and his predecessor.

    Prevention of earnings

    §12. (1) If the Commercial Agent is prevented by the Principal, contrary to the terms of the contract, from earning commission to the extent agreed or to the extent to be expected under the agreements reached, appropriate compensation will be due to him

    (2) The same shall apply if prevention is due to sale during the contractual relationship by the Principal of his enterprise or assigned distribution of the goods to a joint sales outlet.

    Repayment of expenses

    §13. (1) The Commercial Agent may not demand repayment of general costs and expenses incurred during business activity.

    (2) On the other hand, in the absence of any other agreement or contrary trade practice, the Principal must reimburse him for exceptional expenses he is obliged to incur as a result of acting on the instructions of the Principal.

    Settlement and payment of advances

    §14. (1) Settlement of claims for commission is to be made at the latest on the last day of the month following the quarter in which the claim for commission arises. If the contractual relationship ends before expiry of one calendar quarter, settlement is to be made at the latest on the last day of the month after which the claim arose. Such settlement must contain all the information necessary for calculation of the commission.

    (2) The Commercial Agent may request an advance in accordance with his claims which have arisen for commission and expenses.

    Due date of the commission

    §15. The claim for commission shall become due on the day on which settlement is to be made out according to the agreement reached or according to legislation.

    Extract from and inspection of the books

    §16. (1) The Commercial Agent may require the Principal to supply him with an extract from the books and any other information to enable him to check the amount of the commission due to him.

    (2) If the Commercial Agent is able to furnish prima facie evidence that the extract from the books is incorrect or incomplete or that there has been a refusal to supply him with an extract from the books, he may, even before the law suit, plead for submission of such an extract before the district court for the administrative district in which the account books are situated; he may at the same time plead for the Principal to be instructed to provide additional information which will permit calculation in full of the claim which the Commercial Agent is entitled to make.

    (3) The contents of the account books are, insofar as they concern the claims of the Commercial Agent, to be inspected by both parties together, an extract being prepared if necessary. The rest of the contents of the books are to be disclosed to the judge to the extent that this is necessary to check that they are being kept properly.

    (4) If the Principal objects to personal inspection by the Commercial Agent and the parties are unable to agree on a representative, the judge may order that the books be inspected by a bookkeeping expert appointed by the court.

    (5) The provisions of the code of civil procedure regarding the preservation of evidence (§§ 384 to 389 ZPO) are otherwise to apply, mutatis mutandis.

    (6) The limitation period governing the Commercial Agent`s claims shall continue to run during proceedings according to paras 1 to 5, but is shall under no circumstances come to an end until three months have elapsed after the proceedings have reached a final and absolute conclusion and the demands for an extract from the books, inspection of the books and additional information have been met.

    Profit sharing

    §17. If it is stipulated that the Commercial Agent`s remuneration shall wholly or partly be composed of a proportion of the profits resulting from all or some of the transactions or that the profits shall determine the level of remuneration in some other way, settlement is to be made after the end of the financial year on the basis of the annual accounts. §§ 15 and 16 are to apply mutatis mutandis.

    Statute of limitations

    §18. (1) All claims arising from the contractual relationship between the Principal and the Commercial Agent shall become statute-barred after three years.

    (2) In the case of claims which are included in the settlement, the limitation period shall commence at the end of the year in which settlement has been made, but in the case of claims which are not included in the settlement, the limitation period shall commence at the end of the year in which the contractual relationship is terminated. In the case of claims which were only to be settled after termination of the contractual relationship, the limitation period shall commence at the end of the year in which settlement should have been made.

    (3) If the claim is made to the Principal, the limitation period shall be suspended until the written reply of the Principal has been received.

    Right of retention

    §19. The Commercial Agent shall be able to assert the commercial right of retention, also with regard to the samples supplied to him by the Principal, under the conditions specified in §§ 369 and 370 HGB {commercial code}. § 369 para 3 HGB does not conflict with assertion of the right of retention of the samples if the contractual relationship is terminated. The Commercial Agent shall be obliged, however, to return the samples without delay if the Principal pays into court an amount which corresponds to the value of the samples or the amount of the claim, or provides security for this sum in some other manner.

    Termination of the contractual relationship

    Expiry of notice

    §20. A contract concluded for a specific period shall be terminated on expiry of the period for which it was entered into. If the contractual relationship is continued by both parties after expiry of the agreed period, it shall be deemed to have been extended for an indefinite period.

    Giving notice

    §21. (1) If the contract is concluded for an indefinite period, it can be terminated by either party with observation of a one-month period of notice in the first year of the contract; after commencement of the second year of the contract, the period of notice shall, however, last at least two months, at least three months after commencement of the third year of the contract, at least four months after commencement of the fourth year of the contract, at least five months after commencement of the fifth year of the contract and at least six months after commencement of the sixth year of the contract and in subsequent contract years. When calculating the duration of the period of notice for contracts which were initially entered into for a specific period, but which have been extended for an indefinite period under § 20, the duration of the contract entered into for a specific period is to be taken into account.

    (2) Agreement to observe periods shorter than those specified in paragraph 1 shall be invalid.

    (3) If the parties reach agreement on longer periods than those stipulated in paragraph 1, the period to be observed by the Principal may be no shorter than the period to be observed by the Commercial Agent; if this provision is not complied with, the longer period to be observed by the Commercial Agent shall also apply to the Principal.

    (4) Insofar as the parties do not agree otherwise, the end of the period of notice must coincide with the end of a calendar month.


    ⭐️ Продолжение ниже.

  • Premature termination

    §22. (1) The agency contract may be terminated by either party at any time, without observance of a period of notice, for good cause.

    (2) The following are in particular to be deemed to constitute good causes which entitle the Principal to terminate the contractual relationship prematurely:

    1. if the Commercial Agent becomes unable to exercise his activity;

    2. 3. if the Commercial Agent is guilty of an action which makes him seem unworthy of the trust of the Principal, in particular if he accepts recompense contrary to what is stipulated in § 7, if he passes on orders to the Principal which have not been granted or if he otherwise misleads him with regard to important commercial matters;

    4. 5. if the Commercial Agent neglects or refuses to act for the Principal for a considerable period in view of the circumstances, or if he infringes other important contractual provisions;

    6. 7. if the Commercial Agent is guilty of violence against or substantial defamation of the Principal;

    8. 9. if the Commercial Agent is declared bankrupt.

    10. (3) The following are in particular to be deemed to be good causes which will permit the Commercial Agent to effect premature termination of the contractual relationship;

    1. if he becomes incapable of exercising his activity

    2. or

    2. if the Principal

    3. a) improperly reduces or withholds the commission due to the Commercial Agent or infringes other important contractual provisions or

    b) c) is guilty of violence against or substantial defamation of the Commercial Agent, or

    d) e) ceases to be active in the line of business in which the Commercial Agent mainly operates.

    f) Claims in the event of premature termination

    §23. (1) If one of the parties is responsible for premature termination of the contractual relationship under § 22, the other party shall be entitled to demand compensation for the damage caused to him as a result. If one party terminates the contractual relationship prematurely in the absence of a just cause, the other party may demand performance of the contract or compensation for the damage caused to him. This shall also apply if the contractual relationship has been terminated contrary to what is stipulated in § 21.

    (2) If both parties are responsible for premature termination of the contractual relationship, with or without a just cause, the judge must decide at his discretion whether and how much compensation should be paid.

    Compensatory claim

    §24. (1) After termination of the contractual relationship, the Commercial Agent shall be entitled to make an appropriate compensatory claim if and to the extent that

    1. he has brought the Principal new customers or has significantly increased the volume of existing business,

    2. 3. it is to be expected that the Principal or his legal successor will be able to derive considerable advantage from this volume of business even after termination of the contractual relationship, and

    4. 5. payment of compensation is equitable having regard to all the circumstances and, in particular, the commission lost by the Commercial Agent on the business transacted with the customers in question.

    6. (2) Entitlement to make a compensatory claim shall also exist if the contractual relationship ends owing to the death of the Commercial Agent and the conditions specified in paragraph 1 apply.

    (3) Entitlement to make a claim shall not exist if

    (4) 1. the Commercial Agent has given notice of termination or has prematurely terminated the contractual relationship unless circumstances which are the fault of the Principal are the reason for this, even they do not constitute a good cause as specified in § 22 or the commercial Agent cannot be expected to continue his activity because of age, illness or frailty, or

    2. 3. the Principal has given notice of termination or has prematurely terminated the contractual relationship owing to culpable behavior on the part of the Commercial Agent which constitutes a good cause under § 22 or

    4. 5. the Commercial Agent transfers the rights and obligations which he has under the contract to a third party in accordance with an agreement reached with the Principal owing to termination of the contractual relationship.

    6. (4) In the absence of an agreement which is more favorable to the Commercial Agent, the compensatory claim shall amount to no more than the annual remuneration which is calculated from the average of the past five years. If the contractual relationship has lasted less than five years, the average for the entire duration of the contract shall prevail.

    (5) The Commercial Agent shall lose his entitlement to claim compensation if, one year after termination of the contractual relationship, he has not informed the Principal that he is asserting his rights.

    Competition clause

    §25. Any agreement which results in limitation of the commercial activity of the Commercial Agent during the period following termination of the contractual relationship shall be invalid.

    Bankruptcy of the Principal

    §26. (1) The contractual relationship shall be terminated if the Principal is declared bankrupt. The Commercial Agent shall, however, be obliged, in the event of imminent danger, to continue his activity until other provisions can be made.

    (2) If the contractual relationship is terminated owing to bankruptcy before expiry of the specific period for which it was entered into, or if a period of notice was agreed in the contract, the Commercial Agent shall be entitled to demand compensation for the damage caused to him.

    Applicability of legislation. Mandatory provisions

    §27. (1) The provisions of §§ 9 paras 2 and 3, 12 paras 1, 14, 15, 16, paras 1 and 2, 21 paras 1 and 3, 23, 24 and 26 para 2 may be neither set aside nor limited in advance by the contract to the detriment of the Commercial Agent.

    (2) The provisions of §§ 4, 5 and 6 may be neither set aside nor limited in advance by the contract, either to the detriment of the Commercial Agent or to the detriment of the Principal.

    Relationship with other legislation

    §28. (1) The provisions of this Federal Austrian law do not apply to the negotiation and conclusion of insurance transactions, to the legal relationships between employers and employees covered by the Law on Employees, BGGI. {Federal Law Gazette} No. 292/1921, in the version which is respectively valid, or to the legal status of commercial brokers within the terms of § 93 HGB.

    (2) To the extent that this Federal Austrian law does not provide otherwise, the provisions of the HGB and the ABGB {General Civil Code}, in their respectively valid versions, are to be applied to the contractual relationship governed by this Federal Austrian law.

    Final and transitional provisions

    Coming into effect and executive provision

    §29. (1) This Federal Austrian law shall come into force on 1 March 1993.

    (2) The Federal Austrian law of 24 June 1921, BGBI. No. 348, concerning the legal status of self-employed Commercial Agents (Law on Commercial Agents) in the version of 4. EVHGB (Introductory Order to the Commercial Code) of 24 December 1938, dRGBl. I S {Reich Law Gazette} 1999, of the Federal Austrian law of 13 July 1960, BGBl. No. 153, and of the Federal Austrian law of 15 June 1978, BGBl. No. 305, shall cease to apply on 28 February 1993, except for the legislation applying to other negotiators of transactions within the terms of § 29; it shall continue to apply until 31 December 1993 to contracted relationships in existence on 28 February 1993.

    (3) The Federal Minister of Justice has been entrusted with enforcement of this Federal Austrian law.

    Klestil

    Vranitzky

  • OllafsonOllafson Staff
    ред: 3 июн

    Закон Бельгии о коммерческих агентских соглашениях

    Belgium Commercial Agency Agreement Act

    MINISTRY OF JUSTICE

    N.95 - 1481 {Mac - 9425}

    (13 April 1995)

    Если в качестве применимого к агентскому контракту права избрано бельгийское право, при разработке контракта и согласовании его условий необходимо учитывать положения Закона о коммерческих агентских соглашениях.

     


    ALBERT II, King of the Belgians.

    We greet all those present now and in the future.

    The Chambers have adopted and We assent to the following.

     

    Article 1. The commercial agency agreement is an agreement whereby one party, the commercial agent, is charged by the other party, the principal, without the latter exercising authority over it, on a permanent basis and for a remuneration, with negotiating and possibly concluding business transactions in the name and for the account of the principal.

    The commercial agent organizes its activities at its own discretion and is in control of its time.

     

    Article 2. In the third paragraph of article 4 of the act of 3 July 1978 concerning contracts of employment the words "in the sense of the commercial agency agreements act" are inserted after the words "works contract".

     

    Article 3. The present act is not applicable to:

    1E agreements concluded with commercial agents which do not perform their activities as an intermediary on a regular basis;

    2E agreements concluded by insurers, credit institutions and companies listed on the stock exchange with their respective agents;

    3E agreements concluded by commercial agents in so far as they are active at a stock exchange, at other stock markets and markets for other financial instruments or at futures exchanges in goods and commodities.

     

    Article 4. The commercial agency agreement is concluded for a definite or indefinite period of time.

    The agency agreement is concluded for an indefinite period of time when it has not been laid down in writing or, if it has been laid down in writing, its duration has not been determined. An agreement concluded for a definite period of time and which is renewed after expiration of such period shall be deemed to be an agreement for an indefinite period of time on conclusion thereof.

     

    Article 5. Notwithstanding any clause in contravention thereof, either party may obtain from the other party a signed document stating the contents of the agency agreement, including subsequent amendments.

     

    Article 6. The commercial agent must protect the interests of the principal and act in a loyal manner and in good faith.

    In particular the commercial agent must:

    1E dedicate itself appropriately to negotiating and, as the case may be, concluding the business transactions with which it is charged;

    2E provide to the principal all the information required at its disposal;

    3E act in conformity with the reasonable instructions given to it by the principal.

     

    Article 7. Except for a clause in contravention thereof, for performing its duties the commer5cial agent may engage sub agents paid by it acting under its responsibility and of which it becomes the principal.

     

    Article 8. In its relationship with the commercial agent the principal must act in a loyal manner and in good faith.

    In particular the principal must:

    1E put the documentation required concerning the relevant business transactions at the commercial agent's disposal;

    2E provide to the commercial agent all the information required for performing the agency agreement, in particular alert the commercial agent with reasonable notice when it foresees that the volume of the business will be significantly smaller than the commercial agent could have normally expected.

    Furthermore, the principal shall inform the commercial agent within a reasonable period of time of its acceptance, refusal or non-execution of a transaction which the commercial agent has negotiated.

     

    Article 9. The remuneration of the commercial agent consists of either a fixed sum or commission, of partly of a fixed sum and partly of commission.

    All elements of the remuneration varying in accordance with the number of transactions or the value thereof shall be deemed to constitute commission in the sense of the present act.

    If the commercial agent's remuneration does not consist in part or in full of commission, articles 10 to 16 inclusive are not applicable.

     

    Article 10. For a transaction concluded during the term of the agency agreement the commercial agent shall be entitled to commission:

    1E if the transaction has been concluded owing to its action;

    2E or, if the transaction has been concluded with a third party which it had acquired as a customer earlier for similar transactions;

    3E or, if it has been agreed that the commercial agent shall act only in a certain geographical area or among a certain group of persons and the transaction was concluded with a customer established in such area or belonging to such group.

     

    Article 11. For a transaction concluded after termination of the agency agreement the commercial agent is entitled to commission:

    1E if the transaction is concluded mainly owing to activities performed by it during the term of the agency agreement and the transaction has been concluded within a period of six months calculated from the termination of the agreement;

    2E or if, in conformity with the conditions referred to in article 10, the order from the third party has been received by the principal or by the commercial agent prior to the termination of the agency agreement.

     

    Article 12. The commercial agent is not entitled to the commission referred to in article 10 if, pursuant to article 11, such commission is payable to the preceding commercial agent, unless it ensues from the circumstances that it would be fair to divide the commission between the commercial agents.

     

    Article 13. The commission falls due as soon as and in so far as one of the following circumstances arises:

    1E the principal has performed the contract or, pursuant to the contract with the third party, should have fulfilled its contractual obligations;

    2E the third party has fulfilled its contractual obligations.

    The commission falls due at the latest when the third party has or should have performed its share of the contract if the principal had performed its share.

    The commission is paid at the latest on the last day of the month following the calendar quarter in which it has fallen due.

    The provisions of second and third paragraph must not be derogated from to the detriment of the commercial agent.


    ⭐️ Продолжение ниже.

  • prok-offprok-off Staff
    ред: Декабрь 2019

    Закон Бельгии о коммерческих агентских соглашениях (продолжение)

    Article 14. Only in the following cases parties may agree that the right to a commission as provided in articles 10 and 11 is invalidated:

    1E if and in so far as it has been established that the third party does not fulfil its obligations, except if such non-performance may result from circumstances for which the principal is to blame;

    2E if performance has become impossible without such being attributable to the principal;

    3E if performance of the contract cannot be demanded in reason from the principal, particular if due to the action of a third party there are weighty reasons justifying non-performance by the principal.

    In all cases referred to in this article the commission already received by the commercial agent shall be paid back.

     

    Article 15. When the agency agreement is concluded parties freely determine the commission percentage. They may agree on different percentages, in accordance with the categories of the customers visited, the nature of the products distributed or services provided and the role played by the commercial agent in realizing the transaction. They are also free to determine a special percentage for certain exceedingly important or delicate transactions.

    If the agreement does not contain any indication concerning commission percentages and if no single element derived from the relationship between the parties makes it possible to know their implicit wish on this subject, the percentage is applied which is customary for transactions of a similar nature in the economic sector of the location where the commercial agent performs its activities. Failing such customs, the commercial agent shall be entitled to a fair percentage, taking into account all elements related to the transaction.

    Unless otherwise agreed upon, the commercial agent`s commissions are calculated on the basis of the price invoiced to the customer, without deduction of additional costs, such as the cost of packaging, carriage, insurance expenses, except in case they are invoiced separately, however excluding taxes, customs charges and other levies.

    The loyalty discounts, refunds and discounts unilaterally granted by the principal to the customer shall not be excluded in any case from the calculation basis for the agent`s commission.

    Any unilateral modification of the percentage originally agreed upon or the percentages originally agreed upon during performance of the agreement shall constitute an act tantamount to rescission of the agreement. Taking the circumstances into account, the court may however interpret unconditional acceptance, during a relatively long period, by the commercial agent of commissions calculated on the basis of a reduced percentage as implicit agreement to the modification thus applied.

     

    Article 16. The principal shall provide to the commercial agent a statement of the commissions payable, at the latest on the last day of the month following the calendar quarter in which the commissions have fallen due. Said statement contains all relevant details on the basis of which the commissions were calculated.

    The commercial agent may demand that all details at the principal`s disposal are provided to it, in particular extracts from the accounts, if required by the agent for verifying the amount of commissions payable to it.

    The provisions of first and second paragraph must not be derogated from to the detriment of the commercial agent.

     

    Article 17. If the remuneration partly or fully consists of a fixed sum, such sum is paid out on a monthly basis, except if otherwise agreed upon.

     

    Article 18. & 1. If the commercial agency agreement has been concluded for an indefinite period of time or for a definite period of time with the option of premature termination, either party shall have the right to terminate the agreement observing a period of notice.

    The period of notice shall be one month during the first year of the agreement. After the first year the period of notice shall be increased by one month for each additional year commenced, said period not exceeding six months and without prejudice to the provisions contained in the third section. The parties are not permitted to agree upon a shorter period of notice.

    If the parties agree upon a longer period of notice than that referred to in the second paragraph, the period of notice to be observed by the principal must not be shorter than that imposed on the commercial agent.

    & 2. Notice of termination shall be given by delivering to the other party a document stating the commencement and the duration of the period of notice. Notice may also be given by a registered letter, which becomes effective on the third working day from the date of dispatch, or by bailiff`s writ. Except if stipulated to the contrary, the expiration of a period of notice shall coincide with the end of a calendar month.

    & 3. The party terminating the agreement without invoking any of the reasons provided in article 19, first paragraph or without observing the period of notice laid down in & 1, second section, shall be obliged to pay to the other party a termination indemnity equal to the indemnity which is customary and is in accordance with either the duration of the period of notice or the remaining part of such period.

    If the remuneration of the commercial agent fully or partly consists of commissions, the indemnity shall be calculated on the basis of the monthly average of the commissions earned during the twelve months preceding termination of the agreement or, as the case may be, during the months preceding termination of the agreement.

     

    Article 19. Without prejudice to any damages, either party may terminate the agreement without giving notice of termination or prior to expiration of the period of notice, if due to exceptional circumstances any professional co-operation between the principal and the commercial agent has become permanently impossible or if the other party is seriously in default in fulfilling its obligations.

    The agreement can no longer be terminated without giving notice of termination or prior to expiration of the period of notice if the fact justifying termination has been known to the party invoking it for at least seven working days.

    Only the exceptional circumstances or the serious failings of which notice has been given by bailiff`s writ or by registered letter dispatched within seven working days from the termination may be invoked for justifying the termination without giving notice or prior to expiration of the period of notice.

    Notwithstanding any clause in contravention thereof, the present article cannot be derogated from to the detriment of the commercial agent prior to termination of the agreement.

     

    Article 20. After termination of the agreement the commercial agent is entitled to an eviction indemnity if it has acquired new customers for the principal or if it has considerably extended transactions with existing customers, in so far as this may still yield substantial gains to the principal.

    If the agreement contains a non-competition clause, the principal shall be deemed still to obtain substantial gains, subject to evidence to the contrary.

    The sum of said eviction indemnity shall be determined taking into account both the extended business transactions realized and the acquisition of customers.

    The eviction indemnity shall not exceed the amount of one year`s remuneration calculated on the basis of the average remuneration in the preceding five years or, if the term of the agreement was less than five years, on the basis of the average remuneration in the preceding years.

    The eviction indemnity shall not be payable:

    1E if the principal has terminated the agreement for the reason of a serious default for which the agent is to blame as provided in article 19, first paragraph;



    ⭐️ Продолжение ниже.

  • Закон Бельгии о коммерческих агентских соглашениях (продолжение)

    2E if the commercial agent has terminated the agreement, unless termination is due to a reason for which the principal is to blame, as provided in article 19, first paragraph, or is due to age, disablement or illness of the commercial agent on the grounds of which it can no longer be demanded from it in reason to continue its activities;

    3E if the commercial agent or its heirs, in conformity with an agreement with the principal, transfer their rights and obligations ensuing from the agency agreement to a third party.

    The commercial agent shall forfeit its right to an eviction indemnity if it has not notified the principal of its intention to exercise its rights within one year from termination of the agreement.

     

    Article 21. In so far as the commercial agent is entitled to the eviction indemnity referred to in article 20 and the amount of such indemnity does not fully cover the loss suffered, the commercial agent, provided that it proves the actual extent of the alleged loss, may obtain damages in addition to such indemnity amounting to the difference between the amount of the actual loss suffered and the amount of the indemnity.

     

    Article 22. The right to the indemnities referred to in articles 20 and 21 is also created if the agreement is terminated by the decease of the commercial agent.

     

    Article 23. Prior to termination of the agreement parties shall not derogate from the provisions in articles 20, 21 and 22 to the detriment of the commercial agent.

     

    Article 24. & 1. The agency agreement may contain a non-competition clause.

    A non-competition clause is only effective if:

    1E it has been laid down in writing;

    2E it is applicable to the type of transactions with which the commercial agent was charged;

    3E it is limited to the geographical area or to the group of persons and the geographical area which had been entrusted to the commercial agent;

    4E its applicability does not exceed a period of six months from termination of the agreement.

    & 2. The non-competition clause is not effective if the agency agreement is terminated by the principal without invoking a reason referred to in article 19, first paragraph, or by the agent by invoking a reason referred to in article 19, first paragraph.

    & 3. The non-competition clause creates an assumption in favor of the commercial agent that it has acquired customers; the principal may produce evidence to the contrary.

    & 4. The lump sum indemnity provided by the agreement in case of violation of the non-competition clause shall not exceed an amount equal to one year`s remuneration calculated as provided in article 20, fourth paragraph.

    However, provided that it proves the existence and the extent of its loss, the principal may demand a higher indemnity.

     

    Article 25. The liability of the commercial agent for obligations of third parties ensuing from a transaction negotiated or concluded by it must be laid down in writing.

    Unless otherwise agreed upon in writing, the commercial agent shall only be liable for the solvency of a third party pursuant to a delcredere clause, excluding any other default on its part in fulfilling its contractual obligations. The del credere clause shall not be applicable any transaction in which the agent did not act itself. If the principal amends the terms of delivery or payment without the agent`s consent, such clause is no longer applicable.

    The commercial agent cannot hold itself liable for an amount exceeding the commission agreed upon, unless the clause concerns a certain transaction or transactions concluded by it in the name of the principal.

    If the risk to which the commercial agent has committed itself is manifestly disproportionate to the commission agreed upon, the court may reduce the amount for which the commercial agent is liable to the extent that such amount exceeds the commission. The court takes all circumstances into account, in particular the manner in which the commercial agent has protected the interests of the principal.

     

    Article 26. The legal claims ensuing from the agency agreement shall become prescribed by one year having elapsed from the termination of the agreement or five years having elapsed from the date of the fact from which the claim arose, such period not exceeding one year from termination of the agreement.

     

    Article 27. Without prejudice to international treaties to which Belgium is a party, any activity of a commercial agent the head office of which is established in Belgium shall be subject to Belgian law and the competence of the Belgian courts.

     

    Article 28. In article 2 of Book 1, part 1 of the Commercial Code, amended by the act of 3 July 1956, the following paragraph is inserted between the sixth and seventh paragraphs:

    "Any undertakings of commercial agents for negotiating or concluding transactions."

     

    Article 29. The present act is not applicable to obligations the fulfillment of which was demanded in court prior to the date on which it becomes effective.

    Promulgate this act, command that it shall be sealed with the Seal of the State and shall be published in the Belgian Gazette.

     

    Given at Chateauneuf-de-Grasse, 13 April 1995

    ALBERT

     

    On behalf of the King:

    The Minister of Justice,

    M. WATHELET

    N. Sealed with the Seal of the State

  • prok-offprok-off Staff
    ред: 3 июн

    Закон Франции об отношениях между коммерческим агентом и принципалом

    Law (of France) relating the relationship between commercial agent and principal

    (Law № 1-593 of June 25th 1991, J.O. June 27th 1991 p 8271)

    Если в качестве применимого к агентскому контракту права избрано право Франции, при разработке контракта и согласовании его условий необходимо учитывать положения Закона об отношениях между коммерческим агентом и принципалом.

     


    The "Assemblee Nationale" (French National Assembly) and the "Senat" (French Senate) have adopted,

    The "President de la Republique" (French President) promulgates the following law:

    ARTICLE 1

    The commercial agent is a professional proxy who acts as a self -employed intermediary without being bound with a work contract, permanently in charge of negotiating and possibly concluding, sale, purchase, rent or supply of services, on behalf and in the name of producers, industrials, tradesmen, or other commercial agent.

    He can be an individual or a company, registered or not.

    The present law shall not apply to agent who operates in the field of economic activities governed by specific legislative provisions with regard to his mission.

    ARTICLE 2

    Each party shall be entitled to receive from the other, on request, a signed written document setting out the terms of the agency contract including any terms subsequently agreed.

    ARTICLE 3

    The commercial agent can accept other agency contracts without prior authorization of the principal.

    However, the commercial agent shall not conclude with a company or person competing with the principal, except prior agreement of the latter.

    ARTICLE 4

    Agency contracts are concluded in both interest of the parties.

    In carrying out their obligations, the parties must act dutifully, in good faith, and with a mutual information duty.

    The commercial agent must perform his contract as a good professional.

    The principal must provide the commercial agent all the necessary means to carry out his contract.

    ARTICLE 5

    Any part of the remuneration, which varies with the number of values of business transactions shall be deemed to be commission within the meaning of this law.

    Articles 6 to 9 shall apply when the agent is remunerated wholly or in part by commission.

    In the absence of any agreement on this matter between the parties, the commercial agent shall be entitled to the remuneration that commercial agent appointed for the goods or the services forming the subject of his agency contract are customarily allowed in the place where he carries on his activities.

    If there is no such customary practice, a commercial agent shall be entitled to reasonable remuneration taking into account all the aspects of the transaction.

    ARTICLE 6

    A commercial agent shall be entitled to commission, defined in article 5, on commercial transaction concluded during the period covered by the agency contract:

    Where the transaction has been concluded as a result of his action.

    Where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind.

    Where he is entrusted with a specific geographical area or group of customers.

    The commercial agent shall be entitled also to commission for all the transactions concluded during the period covered by the agency contract with a customer belonging to that area or group.

    ARTICLE 7

    A commercial agent shall be entitled to commission on commercial transactions concluded after the agency contract has terminated.

    If the transaction is mainly attributable to the commercial agent?s effort, during the period covered by the agency contract, and if the transaction was entered into within a reasonable period after that contract terminated, or in accordance with the conditions mentioned in the previous article, the order of the third party reached the principal or the commercial agent before the agency contract terminated.

    ARTICLE 8

    A commercial agent shall not be entitled to the commission referred to in article 6 if that commission is due, pursuant to article 7, to the previous commercial agent unless it is equitable because of the circumstances for the commission to be shared between the commercial agents.

    ARTICLE 9

    The commission shall become due as soon as principal has executed the transaction or should have executed it, according to his agreement with the third party or also as soon as the third party has executed the transaction.

    The transaction shall become due at the latest when the third party has executed his part of transaction or should have done it if the principal had executed his part of transaction as he should have.

    The commission shall be paid not later than on the last day of the month following the quarter in which it became due.

    ARTICLE 10

    The right to commission can be extinguished only if it is established that the contract between the third party and the principal will not be executed, and:

    That face is due to a reason for which the principal is not to blame.

    Any commission which the commercial agent has already received shall be refunded if the right to it is extinguished.

    ARTICLE 11

    An agency contract for a fixed period which continues to be performed by both parties after that period has expired shall be deemed to be converted into an agency contract for an indefinite period.

    Where an agency contract is concluded for an indefinite period either party may terminate it by notice.

    The provisions of this article shall apply to an agency contract for a fixed period where it is converted into an agency contract for an indefinite period, subject to the provision that the earlier fixed period must be taken into account in the calculation of the period of notice.

    The period of notice shall be one month for the first year, two months for the second year commenced, and three months for the third year commenced and subsequent years.

    Unless, otherwise agreed by the parties, the end of the period of notice must coincide with the end of a calendar month.

    The parties may not agree on shorter periods of notice.

    If the parties agree on longer period, the period of notice to be observed by the principal must not be shorter than that to be observed by the commercial agent.

    This provision shall not apply when the termination of the contract is provided because of a serious professional misdemeanor of one party or when exceptional circumstances arise.

    ARTICLE 12

    The commercial agent shall be entitled compensation for the damage he suffers as a result of the termination of his relation with the principal.

    The commercial agent shall lose entitlement to the indemnity if within one year following termination of the contract, he has not notified the principal that he intends pursuing his entitlement.

    Heirs of the commercial agent have also entitlement to the right to damage where the agency contract is terminated as a result of the commercial agent's death.

    ARTICLE 13

    The indemnity or compensation referred to the previous article shall not be payable:

    Where the principal has terminated the agency contract because of a serious professional misdemeanor attributable to the commercial agent which would justify immediate termination of the agency contract.

    Where the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities.

    Where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.

    ARTICLE 14

    The contract may include a restraint of trade clause after the termination of the agency contract.

    This clause must be concluded in writing and relates to the geographical area or the group of customers entrusted to the commercial agent also the kind of goods and services covered by his agency under the terms of the contract.

    A restraint of trade clause shall be valid for not more than two years after the termination of the agency contract.


    ⭐️ Продолжение ниже.

  • Закон Франции об отношениях между коммерческим агентом и принципалом (продолжение)

    ARTICLE 15

    Where the activity of the commercial agent is performed according to a main contract having an another purpose, the parties may agree that the provisions of the present law shall not apply to the parties performing the commercial agent's activity.

    This waiver is null and void if the main and relevant activity performed through the conduct of the contract is in fact a commercial agent's activity.

    ARTICLE 16

    Is deemed, null and void any clause or convention contrary to provisions of articles 2, 4, 11 third and fourth paragraph and 15, or any clause restraining the provisions in favor of the commercial agent included in articles 9 second paragraph, 10 first paragraph, 12, 13 and 14 third paragraph.

    ARTICLE 17

    ARTICLE 18

    ARTICLE 19

    Implementation of the present law will be set by Decree of the "Conseil dEtat" (French Council of State) as it is necessary.

    ARTICLE 20

    The provisions of the present law shall apply to contracts concluded after its entry in force and to all contracts in operation by 1 January 1994 at the latest.

    The present law will be performed as a State Law.

    Done at Paris, 25 June 1991.

    (1): This translation is not certified. Readers are strongly recommended to refer to the original French text in case of professional use.

    The translator shall not be liable for any damage arising out from or in connection with the content of this translation.

    (2) and (3): Articles 17 and 18 are not translated as the content of these articles do not concern our purpose.

  • MardukMarduk Staff
    ред: 3 июн

    Закон Швеции о коммерческих агентских договорах

    SWEDISH CODE OF STATUES

    Commercial Agency Act

    (promulgated on May 2, 1991)

    Если в качестве применимого к агентскому контракту права избрано право Швеции, при разработке контракта и согласовании его условий необходимо учитывать положения Закона о коммерческих агентских договорах.


    General provisions

    § 1 The expression "commercial agent" in this Act denotes a person who, in business, has agreed with another, the principal, that on behalf of the latter he will independently and enduringly engage in the sale or purchase of goods by obtaining offers to the principal or by concluding agreements in his name.

    § 2 The terms of an agreement which conflict with the provisions of this Act shall apply instead of the provisions of the Act, unless otherwise stated in the Act. Practice that has developed between the parties, as well as business or other customs, shall be placed on a level with the terms of an agreement.

    If the Act makes clear that a provision may not be disregarded by agreement, the provision also has precedence over practice that has developed between the parties and over business or other customs.

    § 3 A provision that may not, according to the Act, be disregarded to the disadvantage of the agent may neither be disregarded to the disadvantage of the agent through an agreement stipulating that foreign law shall be applied to the legal relationship, if the legal relationship would otherwise be judged according to this Act.

    § 4 If the agent or his principal so requests, a document setting forth the agency agreement and changes in it shall be prepared and signed by the parties.

    The parties cannot waive their right to receive, on request, a document of the kind stated in the first section.

    Obligations of the agent

    § 5 In performing his activities, the agent shall safeguard the principal's interests and act loyally and honestly.

    It is especially incumbent upon the agent to

    1. make reasonable efforts to obtain offers and, if it is part of his activities, to conclude agreements on such matters that are covered by the agency agreement.

    2. 2. inform the principal about offers that have been obtained and agreements that have been concluded as well as about other circumstances of importance for the activities that the agent knows, and

    3. 3. follow reasonable instructions given by the principal.

    4. Terms of the agreement that conflict with the provisions contained in this section are not binding on the parties.

    § 6 The agent shall take good care of goods and other items which belong to the principal and which are in the agent's keeping. The agent shall take out the property insurance necessary. The principal's goods shall be kept separate from other goods.

    If the agent is entitled to receive payment for sold goods, he is obliged to keep the funds received separately and to render an account of his activities.

    Principal's obligations

    § 7 The principal shall act loyally and honestly towards the agent.

    It is especially incumbent upon the principal to

    1. supply the agent with samples, descriptions, price-lists and other necessary material in respect of the goods to which the agreement pertains,

    2. 2. supply the agent with the information required for implementation of his activities, and

    3. 3. inform the agent, without undue delay, that he has accepted or rejected an offer forwarded to him by the agent or that an agreement mediated by the agent has not been fulfilled.

    4. The principal shall, without unreasonable delay, inform the agent if he foresees that the scope of the business will be substantially less than that reasonably supposed by the agent.

    Terms of the agreement that conflict with the provisions contained in this section are not binding on the parties.

    Commission etc.

    § 8 If the agent and the principal have not agreed upon the agent's remuneration, it shall be determined at what is customary where the agent conducts his business. If there is no such custom, the remuneration shall be determined at what is reasonable in view of all the circumstances involved in the activities.

    § 9 The agent is entitled to commission on a transaction concluded during the period of the agency agreement,

    1. if the transaction may be considered to have arisen through the participation of the agent,

    2. 2. if, without the agent's participation, the transaction has been concluded with a third party whom the agent has procured earlier as a customer, provided that the agreement is of the same type or

    3. 3. if the agent has been given a certain territory or a certain circle of customers and the transaction has been concluded with a third party belonging to the territory or circle of customers.

    4. § 10 The agent is entitled to commission on a transaction concluded after the agency agreement has ceased,

    1. if the transaction has been concluded under such circumstances as are referred to in § 9 and the agent or the principal has obtained an offer from a third party during the period of the agency agreement, or

    2. 2. if the transaction has arisen mainly through the agent's participation during the period of the agency agreement and if it has been concluded within a reasonable time after cessation of the agency agreement.

    3. An incoming agent is not entitled to commission in accordance with § 9 on a transaction which gives the outgoing agent the right to commission in accordance with the first section if, in view of the circumstances, it is not reasonable for the commission to be split between the agents.

    § 11 Commission shall be paid not later than one month after the end of the quarter in which the commission was earned.

    Commission is earned when and to the extent any of the following circumstances is at hand:

    1. The principal has fulfilled the agreement with a third party.

    2. 2. The principal should, according to the agreement with a third party, have fulfilled the agreement.

    3. 3. A third party has fulfilled the agreement.

    4. The agent is not bound by terms of the agreement which are less favorable to him than the provisions contained in the first section.

    Nor is the agent bound by terms of the agreement implying that the commission is earned subsequent to completion of the agreement by a third party or would have been so earned if the principal had fulfilled the agreement as he ought to have done.

    § 12 The agent loses his right to commission if it is shown that the agreement between the principal and a third party has not been implemented and that this is not attributable to the principal or any circumstance associated with him.

    If a third party has failed to implement the agreement because the principal has, without the consent of the agent, granted him respite for implementation or agreed with him on cancellation of the agreement, the agent's right to commission is not affected.

    If a third party carries out the agreement only in part, the agent has the right to commission on the part corresponding to what has been carried out, if nothing to the contrary follows from the first or second section.

    If the agent's demand for commission is unsuccessful because of the provisions contained in sections 1-3, he shall pay back the excess he has received.

    The agent is not bound by terms of the agreement which are less favorable to him than the provisions contained in sections 1-3.

    § 13 The principal shall, not later than one month after the end of each quarter, give the agent a commission statement showing the commission that has been earned during the quarter. The commission statement shall contain all information of importance for calculation of the commission.

    If the agent has wholly or partly lost his right to commission on an agreement, information about this shall be provided in the commission statement pertaining to the quarter in which the right to commission was lost. The commission statement shall state the reason for the loss of the right to commission.

    The agent is not bound by contractual terms that are less favorable to him than the provisions contained in this section.


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    § 14 The agent has the right to receive all information which is available to the principal and which the agent needs to enable him to check whether the commission statement contains the amounts of commission which he has earned. Such information includes extracts from the principal's accounting records.

    If, within a reasonable time of presentation of such a request, the principal does not supply the agent with information referred to in the first section, or if there is reason to suppose that this information or the particulars in the commission statement are incorrect, the agent has the right to examine the principal's accounting records to the extent that is necessary. In that connection, the principal may decide whether the examination shall be carried out by the agent himself, by an authorized public accountant or by an approved accountant appointed by the agent.

    The agent is not bound by contractual terms that are less favorable to him than the provisions contained in this section.

    § 15 If the agent has not received his commission or other remuneration in time from the principal or if there are strong reasons to suppose that he will not receive such commission or remuneration, the agent has the right, as security for his claim, to withhold goods, material and documents belonging to the principal which the agent has received in order to perform his activities. However, letters of proxy and other documents of significant importance to the principal may not be withheld.

    If the agent has bought goods on behalf of the principal and forwarded the goods to the principal, or if the agent has returned goods to the principal which he had received for sale, the agent may, in order to secure his right in accordance with the first section, prevent the goods from being delivered to the principal. This applies even if the principal has received a transport document in respect of the goods.

    The agent's right to withhold goods, material and documents ceases when the principal has furnished acceptable security for the claim.

    Terms of the agreement that are less favorable to the agent than the provisions contained in this section are not binding on the agent.

    § 16 The agent may sell goods that he has withheld in accordance with § 15 after three months from the date on which he informed the principal that the goods were being withheld. In that connection, the agent may use the proceeds from the sale to cover the claims from which the goods have served as security. Sale may take place privately or by public auction.

     If the goods are exposed to rapid destruction or deterioration or if they require unduly expensive care, they may be sold earlier than what is stated in the first section.

     If the principal has gone bankrupt, § 10 in chapter 8 of the Bankruptcy Act (1987:672) is valid instead.

     Terms of the agreement that are less favorable to the agent than the provisions contained in this paragraph are not binding on the agent.

    Relations with a third party

    § 17 The agent may not, without special authorization, enter into an agreement on sale or purchase on behalf of the principal.

    Special provisions in the Door-to-Door Sales Act (1981:1361) are applicable to door-to-door sales.

    § 18 If the agent has concluded an agreement on sale or purchase on behalf of the principal without being authorized to do so, the principal shall, if he does not approve the agreement, inform the third party accordingly. The principal shall give this information without unreasonable delay after receiving news about the agreement. If the principal does not do this, he is bound by the agreement.

    § 19 If the principal does not wish to accept an offer that the agent has received, the principal shall inform the third party accordingly without unreasonable delay after acquiring knowledge of the offer. If he does not do this, the offer is deemed to be accepted.

    What has been said in the first section is not valid when the agent and the third party have agreed that the offer shall lapse if the principal does not expressly accept it.

    § 20 If a third party has submitted an offer to the agent and the latter has forwarded the offer to the principal, the third party has the same right to withdraw the offer from the principal as if he himself had submitted the offer.

    What has been stated in the first section is not valid if something to the contrary has been agreed between the agent and the third party.

    § 21 If a third party, who is engaged in business, has negotiated with the agent and thereafter received a communication from the principal that the principal confirms an agreement or accepts an offer submitted by the agent, the third party shall, if he considers that he has not concluded any agreement or submitted any offer or that the agreement or offer is incorrectly stated, inform the principal accordingly without unreasonable delay. If the third party fails to do this and if he can neither show that the communication was incorrect, he is considered to have concluded an agreement with the contents shown by the communication from the principal.

    § 22 The agent may not, without special authorization, receive payment for sold goods or, after conclusion of the agreement, grant a respite for payment or a price reduction or other change in the agreement.

    If the principal learns that the agent, without authorization, has adopted a measure referred to in the first section concerning an agreement which may be considered to have arisen through the participation of the agent or which has been concluded with a third party who belongs to a territory or a circle of customers assigned to the agent, the principal shall, if he does not wish to approve the measure, inform the third party accordingly without unreasonable delay. If he fails to do this, he will be deemed to have approved the measure.

    Special provisions in the Door-to-Door Sales Act (1981:1361) apply to door-to-door sales.

    § 23 If a third party wishes to cite a faut i purchased goods or a delay in delivery or if he wished to inform the principal of some other matter concerning fulfillment of an agreement, he may turn to the agent if the agreement may be considered to have arisen through the participation of the agent or to have been concluded with a third party belonging to a territory or a circle of customers assigned to the agent. The agent may not, without special authorization, reach any settlement as a result of such communication.

    If the principal learns that the agent has, without authorization, reached such settlement as is referred to in the first section, the principal shall, if he does not wish to approve the settlement, inform the third party accordingly without unreasonable delay. If he fails to do this, he will be deemed to have approved the settlement.

    Cessation of the agency agreement etc.

    § 24 For an agency agreement which has not been concluded for a fixed period, notice of cancellation as stated in the second section may be given by the agent or the principal.

    Notice of cancellation of one month is required during the first year of the period of the agency agreement. The notice period is then extended by one month for each partial or complete year of the agency agreement period that has elapsed, until the notice of cancellation amounts to six months.

    The parties may not agree in advance on a shorter period of notice than that stated in the second section. However, they may agree on notice of three months by the agent although the period of the agency agreement has been three years or more.

    If the parties agree to a longer period of notice of cancellation than that stated in the second section, the period of notice of cancellation by the principal may not be shorter than that by the agent.

    Notice of cancellation is counted from the end of the calendar month during which notice is given.

    § 25 An agency agreement concluded for a fixed period ceases on expiry of the period of agreement.


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    If the parties continue the agency relationship after expiry of the period of agreement, the agreement shall subsequently be regarded as an agreement without a fixed period. In calculating notice of cancellation according to § 24, the entire duration of the agency relationship shall then be taken into account.

    Terms of the agreement in conflict with the provisions of the second section are not binding on the parties.

    § 26 The agent or the principal may cancel the agreement with immediate effect if

    1. the opposite party has failed to fulfill his obligations in accordance with the agreement and if the breach of contract by the opposite party is sufficiently important to the party concerned, and if the opposite party has realized or should have realized this, or

    2. 2. there is otherwise an important reason for renouncing the agreement prematurely.

    3. The party wishing to cancel the agreement prematurely shall do this without unreasonable delay after he has learnt, or should have learnt, about the circumstance that he is citing. If he fails to do this, he loses the right to cite the circumstance.

    The agent is not bound by terms of the agreement that are less favorable to him than the provisions contained in this paragraph.

    § 27 If the agent or the principal is declared bankrupt, the agency agreement ceases to be valid. However, despite the bankruptcy of the principal, the agent may extend the validity of period of the agency agreement until the expiry of the day after which the announcement of the bankruptcy declaration is published in the Swedish Government Gazette, if he did not earlier learnt of, or should have learnt of, the bankruptcy.

    § 28 When the agency agreement ceases, the agent is entitled to severance payment if, and to the extent that,

    1. the agent has brought the principal new customers or substantially increased trade with the existing circle of customers and if the principal will benefit substantially from the change, and

    2. 2. the severance payment is reasonable in view of all circumstances, especially the loss of commission on agreements with the customers stated in point 1.

    3. The provisions contained in the first section shall be correspondingly applicable if the agency agreement ceases because of the agent's death.

    The severance payment shall amount to a sum not exceeding payment for one year, calculated on the basis of the average for the past five years or the shorter period for which the agreement has lasted.

    Terms of agreement that are less favorable to the agent than the provisions contained in this paragraph are not binding on the agent.

    § 29 The agent is not entitled to severance payment in accordance with § 28 if

    1. the principal gives notice of cancellation of the agreement because the agent has intentionally, or through carelessness, neglected his obligations to the principal and if the neglect is of such a nature that it gives the principal right to cancel the agreement with immediate effect in accordance with the first section of § 26, point 1, or

    2. 2. the agency agreement ceases because of the agent's bankruptcy, or

    3. 3. the agent, with the principal's consent, assigns the agency to some other party.

    4. Terms of the agreement that are less favorable to the agent than the provisions contained in this paragraph are not binding on the agent.

    § 30 If the agent himself gives notice of cancellation, he is entitled to severance payment in accordance with § 28 only if

    1. the notice of cancellation is based on a circumstance, associated with the principal. Of such a kind that the agent is entitled to cancel the agreement with immediate effect in accordance with § 26, or

    2. 2. in view of the agent's age or illness or similar circumstance, the agent cannot be required to continue his business.

    3. Terms of the agreement that are less favorable to the agent than the provisions contained in this paragraph are not binding on the agent.

    § 31 The agent loses his right to severance payment if, within one year of cessation of the agreement, he does not inform the principal that he demands such payment.

    Terms of the agreement that are less favorable to the agent than the provisions of this paragraph are not binding on the agent.

    § 32 If the agency agreement has ceased, the agent shall, until such time as the principal can himself watch over his interests, adopt such measures as are necessary to protect the principal from loss, if such measures do not cause substantial costs, inconvenience or financial risk for the agent. The agent is entitled to reasonable remuneration for the measures adopted.

    § 33 When the agency agreement has ceased, the agent shall return to the principal goods, material and documents which he received in order to implement the agreement. However, the agent is entitled to withhold the principal's property as security for a claim in accordance with § 15 and to sell it in accordance with § 16

    Damages

    § 34 If the agent or the principal fails to carry out his obligations in accordance with the agency agreement or the law, he is obliged to pay the other party damages arising thereby, if he cannot show that the failure is not due to neglect on his part.

    If the agency agreement ceases to be valid as a result of bankruptcy of one of the parties, the other party is entitled to compensation for the loss arising thereby.

    The party intending to claim damages shall inform the other party accordingly without unreasonable delay after he has learnt, or should have learnt, of the circumstances on which the demand is based. If he does not do so, he loses his right to damages except in those cases where the other party has acted with gross negligence or contrary to his word of honor.

    Terms of the agreement that are less favorable to the agent than the provisions contained in this paragraph are not binding on the agent.

    Competition clauses

    § 35 An agreement between the agent and the principal stipulating that the agent shall not conduct business after cessation of the agency agreement (competition clause) is binding on the agent only and to the extent that the competition clause

    1. has been drawn up in writing

    2. 2. relates to the area or the circle of customers assigned to the agent, and

    3. 3. relates to goods of the kinds to which the agency agreement is applicable.

    4. The agent is not bound by competition clause to the extent that it relates to a period exceeding two years after cessation of the agency agreement.

    Notwithstanding the provisions contained in this paragraph, the Conclusion (1915:218) of Contracts and Other Legal Acts in the Field of Rights to Property is applicable to a competition clause.

    Certain communication

    § 36 If a communication has been sent in an appropriate manner by the agent in accordance with § 16, 31 or 34, or by the principal in accordance with § 18, 19, 22, 23 or 34, or by a third party in accordance with § 21, the communication may be cited even if it is delayed, distorted or has failed to reach the intended recipient.

    1. This law enters into force on January 1, 1992.

    2. 3. Where agency agreements have been concluded before entry of the law into force, the provisions of the Factors, Commercial Agents and Commercial Travellers Act (1914:45) shall be applicable until the end of 1993.

    4. On behalf of the Government.

    INGVAR CARLSSON

    LAILA FREIVALDS

    (Ministry of Justice)

  • Lora75Lora75 Staff
    ред: 3 июн

    Закон Дании о коммерческих агентах и коммивояжерах

    Denmark Act on Commercial Agents and Travelers

    (Act no. 272 of 2 May 1990)

     


    WE MARGRETHE THE SECOND, by the Grace of God Queen of Denmark, do make known that:

    The Danish Folketing has passed the following Act which has received the Royal Assent:

    Part 1 The possibilities of derogation from the Act

    1(1) The provisions of this Act can be derogated from upon agreement unless otherwise specified in the Act. In addition, the provisions of Part 3 can be derogated from according to custom.

    1(2) The provisions of ss. 22 and 25-27 which cannot be derogated from to the detriment of the commercial agent can neither in the case of a governing law agreement be derogated from to the detriment of the agent if the relationship without this governing law agreement were governed by this Act.

    1(3) Where Danish law shall apply to cases where the commercial agent's activities on behalf of the principal under the agreement shall not take place in a country which is a member of the EEC or EFTA or in one of the Nordic countries, the parties can derogate from all provisions of this Act. However, ss. 22 and 25-27 cannot be derogated from in cases where mandatory rules on termination and indemnity apply in the country where the commercial agent's activities shall be carried out or where the commercial agent is resident.

    Part 2 Commercial Agents

    2(1) For the purposes of this Act, commercial agent shall mean a self-employed person who against payment has assumed a continuing activity to negotiate the sale or purchase of goods on behalf of another person (the principal) and for this person's account by obtaining offers (orders) for the principal or by entering into agreements to this effect in his name.

    3(1) The principal and the commercial agent shall be entitled to receive from the other party a signed document setting out the terms of the agency agreement, including any terms subsequently agreed.

    3(2) (1) cannot be derogated from by agreement.

    4(1) In performing his activities the commercial agent must look after his principal's interests and act dutifully and in good faith.

    4(2) In particular, the commercial agent must:

    1) make proper efforts to collect offers and where authorized conclude agreements concerning the transactions comprised by the agency.

    2) 3) communicate to the principal offers collected or agreements concluded and other matters of which the commercial agent has obtained knowledge of which the principal should know, and

    4) 5) comply with reasonable instructions given by the principal

    6) 4(3) (1) and (2) cannot be derogated from by agreement.

    5(1) In his relations with the commercial agent the principal must act dutifully and in good faith.

    5(2) The principal must in particular:

    1) provide his commercial agent with the necessary documentation relating to the goods concerned,

    2) 3) obtain for his commercial agent the information necessary for the performance of the activities, and

    4) 5) notify the commercial agent within a reasonable period of the acceptance or refusal of offers which the commercial agent has procured and of any non-execution of an agreement which the commercial agent has brought about.

    6) 5(3) Where the principal anticipates that the volume of commercial transactions will be significantly lower than that which the commercial agent could normally have expected, the principal must notify the commercial agent within a reasonable period to this effect.

    5(4) (1-3) cannot be derogated from by agreement.

    6(1) If the commercial agent or the principal fails to meet his liabilities to the other party, this party shall have the right to claim compensation for the loss suffered in consequence hereof.

    6(2) The party who wishes to claim compensation shall notify the other party to this effect without undue delay after said party obtained or ought to have obtained knowledge of the negligence and loss. If he fails to do so, the right to claim compensation will be forfeited.

    6(3) S. 6(2) shall not apply where the other party has acted contrary to common decency or with gross negligence.

    7(1) If the commercial agent has goods in stock to be sold on behalf of the principal or which have been bought on behalf of the principal, the commercial agent shall have the same rights and obligations in respect of the goods as those of a commission agent under part 11 of the Act on Commission.

    Commission

    8(1) In the absence of any agreement on the level of remuneration, the commercial agent shall be entitled to the remuneration that commercial agents appointed for the goods forming the subject of his agency contract are customarily allowed in the place where he carries on his activities. If there is no such customary practice, the commercial agent shall be entitled to reasonable remuneration taking into account all the aspects of the transaction.

    9(1) The commercial agent shall be entitled to commission on agreements concluded during the period covered by the agency contract where:

    1) the agreement has been concluded as a result of his action;

    2) 3) the agreement without the collaboration of the commercial agent is concluded with a third party whom the commercial agent has previously acquired as a customer for agreements of the same kind; or

    4) 5) the commercial agent has been entrusted with a specific geographic area or group of customers and the agreement without the collaboration of the commercial agent is entered into with a third party belonging to that area or group of customers.

    6) 10(1) If the agreement is entered into in circumstances as those specified in s. 9(1-3) after the agency contract has terminated, the commercial agent shall be entitled to commission if the offer of the third party reached the commercial agent or the principal before the agency contract terminated.

    10(2) The commercial agent shall, in addition, be entitled to commission if the agreement is mainly attributable to the commercial agent's efforts during the period covered by the agency contract and if the agreement was entered into within a reasonable period after that contract terminated.

    10(3) A commercial agent shall not be entitled to commission on an agreement pursuant to s. 9 if that commission is payable pursuant to (1) and (2) to the previous agent unless it is equitable because of the circumstances for the commission to be shared between the commercial agents.

    11(1) The commission shall become due as soon as and to the extent that one of the following circumstances obtains:

    1) The principal has or should according to his agreement with the third party have delivered the goods or paid the purchase price.

    2) 3) The third party has paid the purchase price or delivered the goods or should have done so according to his agreement with the principal if the principal had executed his part of the agreement.

    4) 11(2) An agreement according to which the commission shall fall due later than what is laid down in (1) no. 2 shall not be valid.

    12(1) The commission shall be paid not later than on the last day of the month following the quarter in which it became due, cf. s. 11.

    12(2) Subsection 1 cannot be derogated from by prior agreement to the detriment of the commercial agent.

    13(1) The principal shall supply his commercial agent with a statement of the commission due in the quarter, not later than the last day of the month following the quarter in which the commission has become due, cf. s. 11. This statement shall set out the main components used in calculating the amount of commission.

    13(2) (1) cannot be derogated from by prior agreement to the detriment of the commercial agent.

    14(1) The commercial agent's right to commission can be extinguished only if and to the extent that it is established that the agreement between the principal and the third party will not be executed and that this is due to a reason for which the principal is not to blame.

    14(2) The commercial agent's right to commission shall not be affected if the third party?s non-performance of the agreement is due to the fact that the principal without the commercial agent?s consent has granted an extension of the time for performance of the agreement to the third party or has reached an understanding on the cancellation of such agreement.

    14(3) If the obligation of the third party under the agreement is only partly met, the commercial agent shall only be entitled to commission on the part which has been met unless otherwise follows from (1) and (2).

    14(4) (1-3) cannot be derogated from by prior agreement to the detriment of the commercial agent.

    14(5) If the right to commission under (1) is extinguished, the commercial agent shall refund any commission received.

    15(1) The commercial agent shall be entitled to demand that he be provided with all the information, including extracts from accounting records, which is available to his principal and which he needs in order to check whether the commission statement shows the amount of the commission due to him.


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    15(2) If the principal refuses to provide the information stated in (1) or if the commercial agent has reason to doubt the correctness of the information or of the commission statement, the commercial agent shall be entitled to demand that the principal at his own option grants access for the commercial agent or a state-authorized or registered public accountant appointed by the commercial agent to examine extracts from the principal's accounting records.

    15(3) The duty to inform under (1) and (2) shall not apply if information would be disclosed which the principal would be privileged to refuse to disclose as a witness, cf. s. 171 of the Administration of Justice Act.

    15(4) (1) and (2) cannot be derogated from by agreement to the detriment of the commercial agent.

    Relations to third parties

    16(1) The commercial agent cannot without authority from the principal conclude agreements that are binding on the principal.

    16(2) If the commercial agent without authority has concluded an agreement which the principal cannot accept, the principal shall communicate this to the third party without undue delay after having been notified of the agreement. If the principal fails to so, he is bound by the agreement if the third party at the conclusion of the agreement acted in good faith as concerns the authority of the commercial agent.

    17(1) If the principal refuses to accept an offer received by the commercial agent, the principal shall communicate this to the third party without undue delay after having received the offer or been notified hereof. If the principal fails to do so, the offer shall be considered accepted.

    17(2) (1) shall not apply if the commercial agent and the third party have agreed that the offer must be expressly accepted by the principal.

    18(1) If the third party has made an offer to the commercial agent and if the commercial agent has forwarded the offer to the principal, the offeror can revoke the offer before the principal gains knowledge of the offer or simultaneously hereto.

    18(2) (1) shall not apply if the commercial agent and the third party have agreed otherwise.

    19(1) A third party who has a business relationship with the principal and who upon negotiations with the commercial agent receives information from the principal that the principal accepts an agreement or an offer the commercial agent has forwarded, the third party shall without undue delay communicate to the principal if the third party will maintain that no agreement has been concluded or no offer made or that the agreement or offer has been incorrectly represented. If the third party fails to communicate this, an agreement with the content specified in the information from the principal, shall be considered to have been concluded, unless the opposite is established.

    20(1) The commercial agent cannot without separate authority to this effect receive payment for goods sold or grant an extension of the time for payment or a reduction in the price or make other changes to the agreement.

    20(2) If the principal has received information that the commercial agent without authority has received payment or made changes to the agreement without authority, the principal shall if he cannot accept the payment or the change communicate this to the buyer without undue delay. If the principal fails to do so, the payment or change shall be considered accepted if the third party at the time of the payment or the change to the agreement acted in good faith as concerns the commercial agent's authority.

    20(3) (1) and (2) shall apply correspondingly where the agreement with the third party concerns the purchase of goods on behalf of the principal.

    21(1) If the buyer wants to give notice of defective goods or that the delivery of the goods was late or if the buyer in any other respect wants to complain to the principal, communication to this effect can be directed to the commercial agent if the commercial agent has been instrumental in the conclusion of the agreement. The commercial agent cannot without separate authority to this effect make decisions on the occasion of such communication.

    21(2) (1) shall apply correspondingly where the agreement with a third party concerns the purchase of goods on behalf of the principal.

    Termination of the agency agreement

    22(1) Where an agency agreement is concluded for an indefinite period, the principal and the commercial agent may terminate the agreement giving one month's notice during the first year of the term of the agreement. The period of notice shall be extended by 1 month for each year or fraction of a year for which the agreement has existed. However, the notice shall not exceed 6 months unless it is agreed otherwise.

    22(2) Periods of notice shorter than those specified in (1) may not be agreed upon by prior agreement. However, it may be agreed that the commercial agent may terminate the agreement giving 3 months? notice even where the agreement has existed for 3 years or more.

    22(3) If the parties agree on periods of notice longer than those specified in (1), the period of notice shall not be shorter when given by the principal than when given by the commercial agent.

    22(4) Unless agreed otherwise, the end of the period of notice must coincide with the end of a calendar month.

    23(1) To an agency agreement for a fixed period which continues to be performed by both parties after that period has expired s. 22 shall apply correspondingly. When calculating the periods of notice stipulated in s. 22(1) the fixed term of the agreement shall be included.

    24(1) Each party shall be entitled to terminate the agreement without observing the period of notice applicable if the other party to a considerable extent has failed to perform his obligations under the agreement or the Act.

    Indemnity on termination

    25(1) On termination of the agency agreement the commercial agent shall be entitled to an indemnity if and to the extent

    1) commercial agent has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive substantial benefits from the business with such customers, and

    2) 3) the payment of this indemnity in equitable having regard to all the circumstances and, in particular, the commission lost be the commercial agent on the business transacted with such customers.

    4) 25(2) (1) shall apply correspondingly where the agency agreement is terminated as a result of the commercial agent's death.

    26(1) The amount of the indemnity may not exceed a figure equivalent to an indemnity for one year calculated from the commercial agent's average annual remuneration over the preceding five years. If the agreement goes back less than five years, the indemnity shall be calculated on the average for the period in question.

    27(1) The commercial agent shall not be entitled to the indemnity referred to in s. 25

    1) where the principal has terminated the agency agreement because of default attributable to the commercial agent

    2) 3) where the commercial agent has terminated the agency agreement, unless such termination is justified by

    4) a) circumstances attributable to the principal, or

    b) c) on grounds of age, infirmity or illness of the commercial agent in consequence of which it cannot reasonably be required to continue his activity, or

    d) 3) where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency agreement to another person.

    4) 28(1) The commercial agent shall lose his entitlement to the indemnity provided for in s. 25, if within one year following the termination of agreement he has not notified the principal that he intends pursuing his entitlement.

    29(1) SS. 25-18 cannot to the detriment of the commercial agent be derogated from by prior agreement.

    Restraint of trade clauses

    30(1) An agreement between the commercial agent and the principal restricting the business activity of the commercial agent following termination of the agency agreement (restraint of trade clause) shall be binding on the commercial agent only if and to the extent that:

    1) it is concluded in writing,

    2) 3) it relates to the geographical area or the group of customers and the geographical area entrusted to the commercial agent, and

    4) 5) it relates to the kind of goods covered by the agency agreement.

    6) 30(2) The restraint of trade clause shall be valid for not more than two years after termination of the agency agreement.

    30(3) A restraint of trade clause may be set aside under s. 38(1) of the Danish Contracts Act.

    Part 3 Commercial travelers

    31(1) For the purposes of this Act, commercial traveler shall mean a person who as part of his service has assumed the task of looking up customers, including an activity to negotiate the sale and purchase of goods which does not result in the collection of offers (orders) for the employer or the conclusion of agreements to this effect on behalf of the employer.

    32(1) While performing his activity for the commercial firm, the commercial agent shall not without the consent of the commercial firm be entitled to negotiate the sale and purchase of goods deriving from other sources.


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    Закон Дании о коммерческих агентах и коммивояжерах (продолжение)

    Commission

    33(1) SS. 9-10, s. 11(1), s. 12(1), s. 13(1), s. 14(1-3) and (5) and s. 15(1-3) shall apply correspondingly to commercial travelers who are paid wholly or partially on a commission basis, however, for commercial travelers the commission is payable every month. Furthermore, s. 14(5) shall only apply where the employment does not fall within the Danish Salaried Employees Act.

    Relations to third parties

    34(1) SS. 16-21 shall apply correspondingly.

    Part 4 Commencement and transitional provisions

    35(1) This Act shall come into force the day after notice of it has been published in the Official Gazette.

    35(2) Until 1 January 1992 the rules applicable so far shall apply to agency agreements concluded prior to the coming into force of this Act. From 1 January 1992 this Act shall apply to such agreement unless the agreement prior to this date has been terminated for expiry not later than 30 June 1992. In such cases the rules applicable so far shall apply.

    36(1) The Minister of Justice may lay down rules for the implementation of the Hague Convention of 19 March 1978 on which Act shall apply to intermediaries and questions of authority.

    37(1) In the Act on Commission, Commercial Agency and Commercial Travellers, cf. Consolidation Act no. 636 of 15 September 1986 the following amendments are made:

    1. The title of the act is changed into: The Act on Commission".

    2. 3. Parts III-IV of the Act are repealed.

    4. 38(1) This Act shall not apply to the Faroe Islands and Greenland. This Act may be Royal order come into force in Greenland with the variations that the special conditions for Greenland warrant.

    Enacted at the Castle of Christiansborg, the 2nd of May 1990

    Under our Royal Hand and Seal

    In the Name of the Queen:

    FREDERIK

    Crown Prince

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