Part 1 - General Part, Chapter 6 - Commercial Representation, Section 2 - Commercial Agent
Definition
Art. 32.
(1) The commercial agent is a person which in a self-employed capacity and as a regular occupation co-operates with another trader in the conduct of the trader’s business activity. He may be empowered to conclude transactions in the trader’s name or in his own name on the trader’s behalf.
(2) The contract between the trader and the commercial agent must be concluded in writing. The trader may not invoke arrangements against the commercial agent deviating from the provisions of Art. 33, 34, art. 36(4) and (5) and art. 40 to the detriment of the commercial agent.
Commercial agent’s obligations
Art. 33.
(1) The commercial agent shall co-operate or conclude transactions with due commercial care taking into consideration the trader’s interests. He shall immediately inform the trader of any concluded transaction.
(2) The commercial agent shall comply with the trader’s instructions as well as communicate to the trader all the information available to him in relation to his activity.
Trader’s obligations
Art. 34.
(1) The trader shall provide the commercial agent with the necessary information and documentation for the conclusion and execution of the entrusted transactions.
(2) The trader shall immediately inform the commercial agent if the trader accepts a transaction concluded by the commercial agent outside his powers, as well as if the trader has concluded a transaction prepared by the commercial agent.
(3) The trader shall provide the commercial agent with the information necessary for the performance of latter’s activity, including for a possible significant decrease in the volume of transactions than expected.
Remuneration in del credere contracts
Art. 35.
Where the commercial agent assumes personal liability for the performance of the obligations under the concluded transactions, he is also entitled to a separate remuneration which shall be agreed in writing. The parties may not agree in advance that such remuneration is not due.
Right to remuneration
Art. 36.
(1) The commercial agent is entitled to remuneration for all transactions concluded by him, with its co-operation or with clients which he acquired for the conclusion of transactions of the same kind during the period of his contract with the trader. Remuneration shall also be paid for transactions which have been prepared but have not been concluded unless that is due to a reason for which the trader is not to blame.
(2) Where the commercial agent is entrusted with a specific geographic area or a group of clients, he is also entitled to remuneration for transactions concluded without his co-operation but with clients belonging to the same area or the same clientele.
(3) The commercial agent is entitled to remuneration for the trader’s receivables he collected.
(4) The trader shall provide the commercial agent with the information necessary for calculating the due remuneration no later than the term pursuant to Art. 38.
(5) Each party shall be entitled to demand from the other party an extract from the commercial books in relation to the transactions concluded under the commercial agency contract, including those necessary to verify the agreed remuneration.
Amount of the remuneration
Art. 37.
When the amount of the remuneration is not agreed, it is considered to be equal to the amount customary for this kind of activity. If a customary amount may not be ascertained, the remuneration shall be determined by the court in a just and equitable amount.
Term for payment of the remuneration
Art. 38.
The commercial agent’s remuneration shall be payable on a monthly basis. The contract may specify another term for payment of the remuneration, but not later than the end of the month following the quarter in which the respective transaction is concluded or should have been concluded.
Compensation for customary expenses
Art. 39.
Unless the contract specifies otherwise, the commercial agent is entitled to compensation for customary expenses related to his activity.
Indemnity and remuneration upon termination
Art. 40.
(1) Upon termination of the contract the commercial agent, respectively the commercial agent’s successors upon his death, shall be entitled to a one-off indemnity if the trader continues benefitting from the clientele, where it is has been brought by the commercial agent, or the trader has significantly increased the volume of transactions with it. The entitlement to such an indemnity is considered in view of all circumstances, including the presence or absence of restricting commercial clauses.
(2) The indemnity is in the amount of the commercial agent’s annual remuneration calculated from the average remuneration for the entire period of the contract, but for no longer than the last 5 years.
(3) The indemnity under (2) shall not be payable where:
1. more than one year as of the termination of the contract has elapsed without the commercial agent notifying the trader in writing for his claim of the due indemnity;
2. the contract is rescinded because of default attributable to the commercial agent or is terminated unilaterally by the commercial agent pursuant to Art. 47(1) or (2), unless such a termination occurred due to his permanent disability or age;
3. the commercial agent assigns the relationship to another consent.
(4) Upon termination of the contract the commercial agent may claim remuneration for already concluded agreements or for agreements the commercial agent prepared for conclusion.
(5) The commercial agent shall not be entitled to remuneration under Art. 36 where pursuant to (4) it is due to a previous commercial agent unless according to the circumstances the remuneration is to be shared between them.
Restrictions following the termination of the contract
Art. 41.
(1) A restriction of the commercial agent in his business activity following the termination of the contract shall be agreed in writing.
(2) The restriction shall cover the same area and kind of goods or services subject of the commercial agency contract. The restriction may not be for more than 2 years as of the termination of the contract. The trader owes indemnity for the period of the restriction.
(3) If the commercial agent rescinds the contract due to the trader’s fault, the commercial agent may release himself from such a restriction by a written notification up to 1 month as of the rescission.
Effect of limitation
Art. 42.
The commercial agent may, even in the absence of a power of attorney, conclude agreements, accept performance of actions by third parties through which they keep their rights against bad performance by the trader. The commercial agent may undertake actions to secure evidence in the trader’s name. The limitation of such rights is effective against third parties only if they knew or should have known of the limitation.
Confirmation of an agreement
Art. 43.
If the commercial agent concludes agreements without a power of attorney and the third party was not aware of that, the agreement is considered to be confirmed by the trader if the trader does not reject it immediately after being notified thereof by the commercial agent or by the third party and informs them of the rejection.
Prohibition to represent competitors
Art. 44.
The commercial agent may represent different traders only if they are not competitors. The commercial agent may agree with the trader to act only as the trader’s agent.
Scope of powers
Art. 45.
The commercial agency contract specifies the commercial agent’s subject and area of action.
Relations between the trader and the commercial agent
Art. 46.
(1) The internal relations between the commercial agent and the trader are arranged in their contract. Unless agreed otherwise the commercial agent equips his working place by himself. If the contract does not specify the remuneration, it is due what is customary for that kind of agency.
(2) The agency under the preceding paragraph may not also be assigned to another person in the same area.
(3) The commercial agent shall indicate the details pursuant to Art. 13 in the documents he issues and in his commercial correspondence.
Termination of the commercial agency
Art. 47.
(1) Where the commercial agency contract is concluded for an indefinite period, either party may terminate it by a one-month notice during the first year, by a two-month notice during the second year, and by a three-month notice after the second year and the parties may not agree shorter notice periods. Where a longer notice period is agreed it shall be the same for both parties. Unless agreed otherwise, the termination of the contract takes effect as of the end of the calendar month in which the notice period expires.
(2) The contract concluded for a fixed period may be terminated prior to its expiry if the terminating party pays the damages caused to the other party.
(3) The termination of the contract pursuant to (1) and (2) may not affect the commercial agent’s rights pursuant to Art. 40.
(4) If after the expiry of the contract period both parties continue fulfilling their obligations, the contract is considered to be extended for an indefinite period. In that case in order to determine the notice period pursuant to (1) the duration of the contract up to the expiry of its period shall also be taken into account.
(5) The commercial agent who has terminated his activity shall file a request for deletion of the registration in the Commercial Register within the period pursuant to Art. 4.
(6) Where the performance of the agency is terminated due to commercial agent’s death or incapacity mandate, the successors, respectively the guardian, and in case of insolvency the respective court, shall request deletion in the Commercial Register.
Scope of application
Art. 48.
The provisions of Art. 32 – 47 shall not apply to persons acting as agents or intermediaries in exchange operations or as agents of those operating in tenders.
