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.