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.
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.
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).