Коммерческое право. Посреднические договоры (конспект лекций)

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Коммерческое право. Посреднические договоры (конспект лекций)

Lecture notes, cheat sheets

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LECTURE No. 54. Intermediary contracts

Intermediary contracts govern the relationship for the commission by one person in the interests of another person of actions regarding the goods. These types of contracts include:

1) instructions;

2) commissions;

3) consignments;

4) commercial concession.

Under an agency agreement, one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal). The contract of agency is paid, mutual and fiduciary (on a trust basis). The subject of the contract of commission is the transaction, but the subject of this contract cannot be an action of a personal nature. The parties to the agency agreement can be both legal entities and capable citizens. The form of the contract is written or oral, but the attorney carries out his activities on the basis of a power of attorney. The contract of agency is used to perform the same type of strictly defined actions. Term of the contract of agency: may be concluded with an indication of the period during which the attorney has the right to act on behalf of the principal, or without such an indication, but in any case this period cannot exceed the period of the power of attorney.

The trustee under the contract of commission is obliged:

1) personally carry out the assignment given to him;

2) inform the principal, at his request, of all information on the progress of the execution of the order;

3) transfer to the principal without delay everything received under transactions made in pursuance of the order;

4) upon execution of the mandate or upon termination of the contract of mandate prior to its execution, immediately return to the principal the power of attorney, the validity of which has not expired.

The trustee must:

1) reimburse the attorney for the expenses incurred;

2) provide the attorney with the funds necessary for the execution of the order;

3) without delay to accept from the attorney all the assignment executed by him in accordance with the contract;

4) pay the attorney a fee.

The contract of agency is terminated due to:

1) cancellation of the order by the principal;

2) refusal of the attorney;

3) the death of the principal or agent, the recognition of any of them as incapacitated, with limited capacity or missing.

The principal has the right to cancel the order, and the attorney to refuse it at any time.

Under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (principal), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal. Under a transaction made by a commission agent with a third party, the commission agent acquires rights and becomes obligated, even if the committent was named in the transaction or entered into direct relations with the third party to execute the transaction.

A commission agreement may be concluded for a fixed period or without specifying the period of its validity, with or without indicating the territory of its execution, with the obligation of the committent not to grant third parties the right to make transactions in his interests and at his expense, the commission of which is entrusted to the commission agent, or without such obligations, with or without conditions, regarding the range of goods that are the subject of the commission.

The committent is obliged to pay the commission agent a remuneration, and in the case when the commission agent has assumed a guarantee for the execution of the transaction by a third party, also an additional remuneration in the amount and in the manner established in the commission agreement.

The commission agreement is terminated due to:

1) the principal's refusal to perform the contract;

2) the commission agent's refusal to perform the contract in cases provided for by law or the contract;

3) death of the commission agent, recognition of his incapacity, limited capacity or missing;

4) recognition of an individual entrepreneur who is a commission agent as insolvent (bankrupt).

Under a consignment agreement, a foreign company that is an exporter of goods to the Russian Federation (consignor) delivers goods to a warehouse to a Russian intermediary (consignee) and instructs him, on his own behalf, to further sell the supplied goods for a fee within a certain period, while the goods are the property of the exporter until they are sold. buyers. The consignment agreement is a type of commission agreement and is used for goods, the demand for which is difficult to predict. An essential condition of the consignment agreement is the opening of a consignment warehouse.

Under a commercial concession agreement, one party (right holder) undertakes to grant the other party (user) for a fee for a period or without specifying a period of time the right to use in business activities a set of exclusive rights belonging to the right holder, including the right to a trade name and (or) commercial designation of the right holder , to protected commercial information, as well as to other objects of exclusive rights provided for by the agreement - a trademark, a service mark, etc. Legal entities and citizens registered as an individual entrepreneur can be parties to the agreement. The form of a commercial concession agreement is written, and this agreement is registered by the body that registered the legal entity or individual entrepreneur acting under the agreement as the copyright holder. The commercial concession agreement specifies the subject of the agreement, the territory of use, the area of activity that will be used, the rights and obligations of the parties.

The copyright holder is obliged:

1) transfer to the user technical and commercial documentation and provide other information required by the user;

2) instruct the user and his employees on issues related to the exercise of rights under a commercial concession agreement;

3) issue licenses to the user, ensuring their execution in the prescribed manner;

4) ensure registration of a commercial concession agreement;

5) provide the user with ongoing technical and advisory assistance, including assistance in training and advanced training of employees;

6) control the quality of goods produced by the user on the basis of a commercial concession agreement.

The user is obliged:

1) to use, in the course of carrying out the activities provided for by the contract, the trade name and (or) commercial designation of the right holder in the manner specified in the contract;

2) to ensure that the quality of the goods produced by him on the basis of the contract corresponds to the quality of similar goods produced directly by the right holder;

3) comply with the instructions and instructions of the copyright holder;

4) provide customers with all additional services;

5) not to disclose the production secrets of the right holder;

6) grant a limited number of sub-concessions;

7) inform buyers in the most obvious way for them that he uses a company name, commercial designation, trademark, service mark or other means of individualization by virtue of a commercial concession agreement.

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