Национальные законы стран ЕС и Швейцарии об агентских договорах
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.