Extract
[...] = conclusion in his own name but for the account of the principal (the name of the agent will appear) > The agent concludes the operation in his own name He therefore does not reveal the name of the principal to the third party He must act with diligence to conclude the contract, the principal gives him instructions (selling price, quality of the merchandise, travel time) > On the contrary, the agent must communicate to the principal all the information he has about the market situation during the execution of his mission and must account for the execution of his mission He must indicate the tariff conditions under which he concluded the contract He must act in the best interests of his principal HOWEVER he is not required to reveal the names of third parties with whom he contracts (unless he can go directly, no need to pay the intermediary = he acts as a screen) The intermediary cannot conclude contracts in his own account He cannot act as a contracting party > The intermediary, if he does not execute his mission correctly, he engages his liability for non-execution or faulty execution He is not responsible for the non-execution or bad execution of third parties = it is not him who executes, he is only responsible for his own bad execution > DUCROIRE Clause This clause is a guarantee of good faith It can be inserted into the commission contract at the request of the principal It has the object of making the commissionnaire guarantee the good end of the operation, and in other words he will answer not only for his own bad execution of the contract but also for the bad execution of the contract by the third party = AGGRAVATION of his liability > The principal is required to pay the commissionnaire He is required to pay the remuneration agreed upon by the parties: The commission It is proportional to the value of the operation or lump sum It can be modeled downward by the judge > The privileged commissionaire of a guarantee the committant is obliged to pay the commissionnaires before other debtors The relationship between the committant and third parties > The first aspect is that the committant and the third party are unaware of each other Given that the commission contract is present in international commercial relations, it is not useful to know one's co-contractors The committant and the third party are not aware of each other's identities > The commissionnaire is required to lift the anonymity and indicate the identity of their co-contractor when there are engagements of responsibility at play The commission contract requires expertise This commissionnaire is often called upon in international trade sales II- The brokerage contract > The brokerage contract is found in commercial matters (in financial operations) Broker negotiates for his client, proposes financial arrangements or insurance > Here, relationships are established for the conclusion of a contract The broker does not personally commit and is not responsible for the poor execution of the contract > One can still seek his responsibility under several titles: - As an intermediary, he must act with diligence to find for his client a co-contractor who meets the professional conditions and the tariff conditions that his client wishes to conclude - He is bound by an obligation to inform and this obligation to inform relates not only to the envisaged legal operation but also to its modalities (on the realization deadlines) His sole responsibility results from his own negligence > He is independent in the exercise of his mission He is not subordinate to his co-contractor, acts with complete independence He is free to find the co-contractor he wishes > The broker is not bound by a result obligation > And on his side, the client is not obliged to conclude the contract with the partner found by the broker If he was there to negotiate the tariff conditions, the client may decide that these conditions do not please him > BUT if the broker had a firm obligation Find clients with a clear price Here, the client cannot refuse to conclude the contract, or else he would engage his responsibility > If the contract is concluded, the client is then required to remunerate the broker in accordance with the modalities provided for in the contract Often corresponds to a percentage of the contract amount III- The Commercial Agent Contract > The commercial agent is the main contract that is found in France in intermediation contracts Its status is regulated by the provisions of Article L134-1 of the Commercial Code It is defined as the representative who, as an independent profession, is responsible for negotiating and concluding contracts on behalf of and for the account of his commercial clients > The commercial agent is responsible for prospecting the clientele It will take orders and/or receive orders > Its relationship is inscribed in time with its representative HOWEVER it acts independently in its missions = no account to render on its clients, on its principals It can very well have several principals operating in the same field of activity > The commercial agent exercises in the form of : - natural person It must be registered before exercising its activity in the special register of commercial agents (this register being kept by the clerk of the commercial court) - legal entity > The commercial agent is held by a mandate contract with its principal Specificity of this mandate Mandate of common interest Long-term relationships, multiple mandates to increase his remuneration and the more contracts he has, the more the principal benefits = Interests for each party > Regarding the agent's remuneration, commissions He will benefit from this right to commission for all contracts concluded thanks to his intervention This extends after the contract transfer as soon as it has been concluded after his intervention even if it is executed after the contract transfer > The commission is calculated on a percentage In terms of remuneration, there are practices that apply a differentiated rate depending on the category of goods sold (Carrots ? 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[...] luxury bags > Fixed-term contract The contract ends at the expiration of the term One cannot unilaterally bring it to an end, one must respect the contract until its term, except in case of non-performance of the contract > In an indefinite-term contract, the contract ends after a notice period that comes from either of the parties In the matter of commercial agent, the notice period is 1 month if the contract has lasted at least 1 year months if the contract has lasted 2 years and 3 months if more than 3 years . [...]
[...] - It must exclusively procure from its co-contractor more often it is even imposed with procurement quotas - One can impose standards for the maintenance of its establishment - One can impose it to have an after-sales service (or in car concessions a repair service) > On the other hand, the concessionaire must - have control of the network - provide assurance and assistance in the activity - It develops commercial advertising - Must provide the goods to its co-contractor on time - Must enforce the exclusivity that it has conferred on its co-contractor Must therefore refuse to sell to competitors in the same territory (and cannot be condemned on the grounds of refusal to sell) > The licensor may benefit from a compensation in case of non-renewal The problem that arises What do we do with the stocks It is necessary to provide in the contract a clause for the takeover of stocks that allows obtaining from the licensor the amount of goods that is reduced . [...]
[...] Commercial Law - Contracts Constituting Commercial Activity Introduction : > Contracts concluded by merchants for the needs of commercial activity > Can be concluded on paper or by electronic means HOWEVER, contracts concluded on electronic support have the same probative value as contracts concluded on paper support provided they are preserved on a medium whose integrity of content and contract signatures is guaranteed Let's see the most common electronic contracts Section 1 - Commercial Sales Contract > Commercial sales are the most common of contracts It is by concluding sales contracts that the merchant who carries out acts of resale purchase (by nature) will be able to develop their business These are acts of commerce by nature) > They can be concluded between merchants (in distribution operations) or between a merchant and a consumer Certain merchants are only turned towards other merchants = B to B Certain merchants are turned towards consumers = B to C > Commercial sales are governed by : - the provisions of L110-3 of the Commercial Code and following : Lay down the principle of freedom of proof - Articles 1582 and following of the Civil Code : for the common law provisions of the sale Vienna Convention (89 states) Text that has unified trade, applies to all international sales of goods as soon as it concerns the conditions of formation and execution of the sale Formation of the commercial sales contract > Conditions of formation of a contract : Consent of the parties There must be an offer from the seller (common law condition) Principle wants the sale to be transparent : In addition to the price, the merchant must inform the future co-contractor of all the conditions of the proposed sale = dissemination of general terms of sale (commercial law condition) In addition to having easily accessible conditions, the professional is also subject to an obligation to inform, by which he will have to inform the consumer of the adequacy of the legal operation with his needs This can lead to advising against the formation of a contract In the same way, the buyer accepts in an express, tacit, or silent manner (silence is considered acceptance in commercial law, exception to Article 1120 of the Civil Code) Framework contract contract in which an agreement organizes future contracts) There must be a meeting of an offer and an acceptance NOTE : The refusal to sell to a consumer is penalized by a fine that falls within the 5th class of contraventions, unless it can motivate its refusal with a legitimate reason for refusal (such as the unavailability of the product) The consumer will be able to force the execution of the contract HOWEVER, in contracts concluded between professionals, refusal is allowed (for example, if the merchant is a bad payer) When a commercial professional is in a dominant position on a market and refuses to conclude a contract with another professional, it can lead to distortions in the right to competition and be sanctioned either for abuse of dominant position (anti-competitive practice) or for abusive exploitation of a monopolistic situation On condemns the will to eliminate competitors > In commercial matters, some specific sales contracts : - Conditional Sale The conclusion of the sales contract will depend on a future and uncertain event (if the event occurs, the sale is formed, otherwise it will be annulled) Example: commitment to buy tomatoes as soon as it is below the bar of ?1.50 per kg, passage to quality control center The contract is formed but the obligation will only arise in the event of the condition being met - Right of Withdrawal In consumer law, the consumer in remote sales benefits from a 14-day cooling-off period to withdraw from their purchase In the case of doorstep canvassing, the consumer also benefits from a 14-day right of withdrawal when the professional came to canvass them HOWEVER Once the consumer moves (either in-store, or at a fair or exhibition) and makes a sale, the consumer code does not offer them the benefit of the right of withdrawal > Therefore, consent must exist and it must not be vitiated: - Article 130 and following Civil Code - L454-1 and following of the consumer code Punishes with imprisonment and fine the fact of deceiving or attempting to deceive a co-contractor on the nature, species, origin, substantial qualities, composition of the sold merchandise - The legislator is aided by a praetorian law sanction of abusive clauses in a contract (consumer law) in relation to the parties - Articles L212-1 and following of the consumer code draw up an exhaustive list of clauses that are irrefutably considered not written (abusive) as soon as they appear in a consumer contract = BLACKLIST - There is also a list of clauses considered abusive but the professional can demonstrate that in relative terms they provide an advantage to the consumer = GREY LIST - In addition, there are in the civil code the common abusive clauses that apply to all types of contracts (including between merchants) These are clauses that lead to a imbalance, that deprive the contract of its substance? 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[...] Section 2 - Intermediary Contracts > Profession of habitually bringing people together for the conclusion of a contract Article L110-1 of the Commercial Code Act by nature > Several varieties of intermediary contracts However, as soon as they are professionals, they acquire the status of merchant and are subject to the provisions of commercial law The commission contract > Contract by which the intermediary performs commercial operations on behalf of another but in their own name = Binds himself alone to the third party, without necessarily disclosing the identity of the principal He engages his responsibility in case of default during the execution of the contract > One finds principals in networks of concession, purchasing centers (the distributing merchants themselves will be the principals) > The commission contract is also used in stock market operations in which investment companies will resort to principals in order not to reveal the name of their client In the organization of transport contracts (and in particular international transport contracts), we will have recourse to principals who will organize the entire journey of the goods > The commission contract is a triangular operation: - The principal - the one who will carry out the operations - The principal - the one who requested the contract - Third parties Relations between the agent and the principal governed by articles 131-1 and following of the Commercial Code > The agent first has the obligation to conclude the operation entrusted to him by the principal If he is entrusted with selling merchandise, he must find buyers If he is entrusted with importing merchandise, he must search for suppliers If he is entrusted with transporting merchandise, he must conclude transportation contracts . [...]
