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Publication date: 17.01.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
In practice, it is quite common to find cases of concluding contracts for transportation, tourist services, and the purchase and sale of goods with the participation of commercial intermediaries.
- In general, commercial intermediation is a certain type of business activity, the essence of which is the provision of services by an intermediary to business entities during the latter's business activities.
- Commercial mediation is also called agency activity, and those who conduct it are called commercial agents.
- The main features of commercial mediation include the purpose of obtaining profit as a result of the provision of agency services, a special composition of subjects (mediation services are provided exclusively by business entities), the presence of certain limits of application, since it is possible only in the field of business when conducting entrepreneurial activity, as well as the fact that the intermediary's actions are performed on behalf and in the interests of the business entity he represents (the agent cannot act on his own behalf).
Features of the agency contract:
- The basis of the activity of a commercial agent is a contract concluded with a business entity, which is an agreement under which the agent undertakes to provide mediation services when concluding agreements, or to facilitate their conclusion by the business entity on behalf of and at the expense of this subject.
- Therefore, the main basis for the commercial agent to have mediation powers is the relevant contract.
- The second reason is the cases when the agent acts without authority, or in excess of such authority, but the business entity itself fully approves the result of the agency's activity, i.e. the agreement concluded with third parties.
According to Art. 299 of the Civil Code, it is worth distinguishing several types of agency relations, namely: monopoly and non-monopoly.
- Under monopolistic relations, the agent undertakes not to mediate for other business entities, except for the one with whom he concluded the contract. If the relationship is non-monopoly, then this enables the agent to mediate for other business entities, and the other participant in the relationship to appoint other agents to mediate.
- The agency contract itself needs detailed attention, because it is this deed that will regulate the legal relationship between the agent and the business entity.
- The essential terms of this contract are its subject matter, price and term of validity. In addition to the essential conditions, it is also worth mentioning in the contract the conditions on the scope of rights and obligations of the parties, responsibility for non-fulfillment of contractual obligations, a list of force majeure circumstances, a condition on the territory within which the powers of representation will be exercised.
It is worth describing in sufficient detail the procedure and nature of mediation services.
- Confidential information, which the agent received during the exercise of his powers from the business entity, he has no right to transfer to other persons, or to use in the interests of the owner.
- For more reliable protection of confidential information, the parties may enter into an additional relevant agreement.
- As for the remuneration for mediation services, it is paid to the commercial agent after the third party makes the payment in accordance with the agreement concluded with the involvement of the commercial intermediary.
- The amount, terms of payment and other subtleties are determined by the parties in the contract. In that case, if the agent's exercise of his powers resulted in damage to the business entity, he shall bear full responsibility.
- Along with this, the agent cannot guarantee the business entity that the third party with whom the agreement was concluded will fulfill the obligations assigned to it.
Procedure for concluding an agency contract:
1. The first step is to check the counterparty with whom the agency contract will be concluded. It is quite important to use as many tools as possible for a comprehensive check for the presence of open proceedings, debts, information about the business entity, and other information that would make it possible to find out the reputation and the possibility of representation by the counterparty.
2. Next, it is worth preparing a draft of the future contract, including all the conditions described above. At tis stage, the legal analysis of a contract is extremely important. It is important that the contract does not contain provisions that would be subject to double interpretation. In accordance with Part 4 of Art. 297 of the Civil Code, the contract should be concluded in writing. In addition, it is necessary to indicate the form in which the agent's powers will be confirmed.
3. The next step is to send a proposal to conclude a contract, that is, an offer. The offer must contain all essential conditions, express the intention to conclude a contract and be addressed to a specific person.
4. Having accepted the offer, the counterparty will analyze all the essential conditions and, in case of agreement with them, sends a response in the form of acceptance. The answer must be complete, unconditional, and also addressed specifically to the offeror.
5. From the moment the offerer receives a response to the offer, the contract will be considered concluded. Notarization of the agency contract can be carried out at the request of the parties.
Legal analysis of contracts:
The services of a lawyer may be needed at each of the stages of concluding a contract. The lawyer will not only comprehensively check the counterparty, but also prepare a draft contract, including all the conditions that will effectively regulate the agency's activities, and conduct a legal analysis of documents. Also, the consultation of a lawyer may be necessary in the event that the counterparty fails to fulfill its contractual obligations, because in this case the lawyer will ensure the implementation of a pre-trial settlement (drafting and analysis of a claim ) of the dispute, or an appeal to the court.
