Dutch Civil Code
Голландский Гражданский Кодекс
Если в качестве применимого к агентскому контракту права избрано право Нидерландов, при разработке контракта и согласовании его условий необходимо учитывать положения Голландского гражданского кодекса об агентском договоре
By the act of 6 July 1989, S312, the Dutch Commercial Code was amended to conform to the EEC directive concerning independent commercial agents. Thereby it was laid down that as from 1 January 1994 said act would be applicable to agency agreements concluded prior to 1 November 1989.
By the act of 27 May 1993 (most of) the provisions concerning the agency agreement previously laid down in the Dutch Commercial Code were moved to section 5 of part 7 Book 7 of the Dutch Civil Code.
It should be borne in mind that a number of provisions is laid down in section 1 of part 7 and section 3 of part 7 Book 7 of the Dutch Civil Code.
The agency agreement is an agreement whereby one party, the principal, charges the other party, the commercial agent, which the latter undertakes, for a definite or indefinite period of time and for a remuneration, to act as intermediary in the realisation of contracts and possibly to conclude such contracts in the name and for the account of the principal, without the latter exercising authority over it. 2.
The provisions of this section are not applicable to agency agreements to which the Wet Assurantiebemiddelingsbedrijf (Insurance Agency Business Act) is applicable. 3.
Either party is obliged to provide to the other party at its request a signed document representing the then effective contents of the agency agreement.
Del credere clause
The commercial agent can only hold itself liable for obligations of third parties ensuing from a contract negotiated or concluded by it if such liability is laid down in writing. 2.
Unless otherwise agreed upon in writing, the commercial agent shall exclusively be liable for the solvency of a third party pursuant to a del credere clause. 3.
The commercial agent cannot hold itself liable for an amount exceeding the commission agreed upon, unless the clause concerns a certain contract or contracts concluded by itself in the name of the principal. 4.
If the risk to which the commercial agent has committed itself is manifestly disproportionate to the commission agreed upon, the court may reduce the amount for which the commercial agent is liable to the extent that such amount exceeds the commission. The court takes all circumstances into account, in particular the manner in which the commercial agent has protected the interests of the principal.
Obligations of the principal
The principal shall do everything required to be done on its part in the prevailing circumstances to enable the commercial agent to conduct its activities. 2.
It shall put the documentation required concerning the goods and services for which the commercial agent negotiates contracts and provide to it all the information required for performing the agency agreement. 3.
It is obliged to alert the commercial agent without delay if it foresees that the volume of contract that will or may be concluded will be significantly smaller than the commercial agent could have expected. 4.
It shall inform the commercial agent within a reasonable period of time of its acceptance, refusal or non-execution of a contract which the commercial agent has negotiated.
Right to commission
The commercial agent is entitled to commission on the contracts realised during the term of the agency agreement: a)
if the contract has been concluded owing to its intervention; b)
if the contract has been concluded with a person which it has acquired as a customer earlier for a similar contract; c)
if the contract has been concluded with a person belonging to the clientele or established in the geographical area which has been allocated to the commercial agent, unless it has been explicitly agreed that the commercial agent does not have the exclusive right in respect of such clientele or in such geographical area. 2.
The commercial agent is entitled to commission for the preparations for contracts realised after termination of the agency agreement: a)
if such contracts are concluded mainly owing to activities performed by it during the term of the agency agreement and have been concluded within a reasonable period from termination of the agreement, or b)
if, in conformity with the conditions referred to in the first paragraph, the order from the third party has been received by the principal or by the commercial agent prior to termination of the agency agreement. 3.
The commercial agent is not entitled to commission if, pursuant to the second paragraph, such commission is payable to its predecessor, unless it ensues from the circumstances that it is fair to divide the commission between them.
Right to commission and acting as intermediary
If the role of the commercial agent was limited to acting as intermediary in realising the contract, the order supplied by it to its principal shall be deemed to have been accepted in respect of the right to commission pursuant to article 426, unless the principal informs the commercial agent within a reasonable period of time, referred to in article 430 paragraph 4, that it reuses the order or makes a reservation. Failing a period of time stipulated in the agency agreement, the period shall be one month from the time when the order was communicated to it. 2.
The condition causing the right to commission to depend on the performance of the contract must be explicitly laid down. 3.
If the condition referred to in the second paragraph has been laid down, the right to commission is created at the latest when the third party has performed its part of the contract or should have done so, if the principal had performed its part of the contract.
Obligation of the principal to provide a statement
After expiration of each month the principal is obliged to provide a statement to the commercial agent of the commission payable for that month, specifying the details on the basis of which the calculation was made; said statement must be provided prior to the expiration of the subsequent month. Parties may agree in writing that the statement is provided every two or three months. 2.
The commercial agent has the right to demand inspection of the relevant documents from the principal, however without having the right to demand them to be surrendered. At its expense it may cause itself to be assisted by an expert accepted by the principal or, in case of rejection, appointed by the president of the competent court at the request of the commercial agent. 3.
Parties may however agree in writing that a third party may inspect the relevant documents; if the latter does not perform its duty, the president of the court will appoint a substitute. 4.
Submission of the relevant documents by the principal takes place under the obligation of secrecy by the commercial agent and the persons referred to in the preceding paragraphs. However, the latter are not obliged to observe secrecy in respect of the commercial agent as far as information referred to in the first paragraph is concerned.
Time commission falls due
The commission falls due at the time when the written statement referred to in article 433 must be provided at the latest.
Right to remuneration
The commercial agent is entitled to a remuneration if it is prepared to fulfil its obligations ensuing from the agency agreement or has already fulfilled them, but the principal has availed itself of the services of the commercial agent not at all or to a substantially lesser extent than the latter could have expected to be normal, unless the principal?s conduct ensues from circumstances for which in reason it is not liable. 2.
In determining such remuneration the amount of the commission earned in the preceding period is taken into account as well as all other relevant factors to be taken into account, such as the expenses not incurred by the commercial agent by not conducting activities.
Renewal for indefinite period of time
An agency agreement which is renewed by both parties after expiration of the term for which it was concluded shall be binding upon parties for an indefinite period of time under the same conditions.
Right to termination of parties
If the agency agreement has been concluded for an indefinite period of time or for a definite period of time with the right of premature termination, either party shall have the right to terminate the agreement observing the period of notice agreed upon. Failing a relevant agreement, the period of notice shall be four months, increased by one month after a three-year term of the agreement and by two months after six years.
Period of notice
The period of notice shall not be shorter than one month in the first year of the agreement, two months in the second year and three months in the subsequent years. If the parties agree upon longer periods of notice, such periods must not be shorter for the principal than they are for the commercial agent. 3.
Notice of termination should be given towards the end of a calendar month.
Termination of agency agreement
The agency agreement is terminated by the decease of the commercial agent. 2.
In the event of the decease of the principal, both its heirs and the commercial agent shall have the right to terminate the agreement, provided that such is effected within nine months from the decease, observing four months notice.
The party which terminates the agreement without observing its term or without observing the legal period of notice or the period of notice agreed upon and without the other party agreeing thereto shall be liable for damages, unless it causes the agreement to terminate for an urgent reason communicated to the other party without delay. 2.
Urgent reasons are circumstances of such a nature that it cannot be demanded in reason from the party terminating the agreement to continue the agreement, even temporarily. 3.
If termination of the agreement for an urgent reason is based on circumstances for which the other party is to blame, the latter shall be liable for damages. 4.
A clause in which the decision whether an urgent reason exists is left to either party shall be null and void.
Rescission by the subdistrict court
Either party has the right the request the subdistrict court to rescind the agency agreement on the grounds of: a)
circumstances which produce an urgent reason in the sense of article 439 paragraph 2; b)
a change in the circumstances of such a nature that fairness demands that the agreement is terminated without delay or in the near future. 2.
If the court pronounces rescission on the grounds of a circumstances as referred to in the first paragraph sub a and if the defendant may be blamed for such circumstance, the latter shall be liable for damages. 3.
If the court pronounces rescission pursuant to the provision in the first paragraph sub b, it may award an indemnity to one of the parties. It may decide that such indemnity is paid in instalments. 4.
The fifth, sixth, seventh, ninth, tenth and eleventh paragraphs of article 1639w of Book 7A are applicable mutatis mutandis.
Extent of liability for damages 1.
By the party which is liable for damages pursuant to article 439 or article 440 paragraph 2A, a sum is payable to the other party equal to the remuneration for the period the agency agreement should have continued in case of regular termination. For determining said sum the commission earned in the preceding period is taken into account as well as all other relevant factors to be taken into account. 2.
The court has the right to reduce said sum if it deems it to be too high in view of the circumstances. 3.
Instead of the damages referred to in the preceding paragraphs, the injured party may claim full compensation of its loss, subject to its obligation to prove the extent thereof.
Compensation for goodwill
On termination of the agency agreement, without prejudice to its right to claim damages, the commercial agent is entitled to an indemnity, goodwill, in so far as: a)
it has acquired new customers for the principal or it has considerably extended the contracts with existing customers and the contracts with such customers still yield substantial gains to the principal, and b)
payment of such indemnity is fair, considering all circumstances, in particular the commission from the contracts with such customers which is lost by it. 2.
The amount of the indemnity shall not exceed that of one year?s remuneration calculated on the basis of the average remuneration in the preceding five years or, if the term of the agreement was less than five years, on the basis of the average of its total term. 3.
The right to indemnity shall be forfeited if the commercial agent has not notified the principal that it demands an indemnity within one year from termination of the agreement. 4.
The indemnity is not payable if the agreement has been terminated: a)
by the principal in circumstances rendering the commercial agent liable for damages pursuant to article 439 paragraph 3; b)
by the commercial agent, unless such termination is justified by circumstances for which the principal is to blame or is justified by age, disablement or illness of the commercial agent on the grounds of which it can no longer be demanded from it in reason to continue its activities; c)
by the commercial agent which, in conformity with an agreement with the principal, transfers its rights and obligations ensuing from the agency agreement to a third party.
A clause restricting the freedom of the commercial agent to conduct business operations after termination of the agency agreement is valid only if; a)
it is applicable to the type of goods and services of which it had the agency and to the geographical area, or the clientele and the geographical area, entrusted to it. 2.
Such clause shall only be valid for two years maximum from termination of the agreement. 3.
The principal cannot derive any rights from such clause if the agency agreement was discontinued: a)
by the principal terminating it without the consent of the commercial agent without observing the legal period of notice or the period of notice agreed upon and without an urgent reason of which it has notified the commercial agent without delay; b)
by the commercial agent terminating it for an urgent reason of which it has notified the principal without delay and for which the latter is to blame; c)
by a decision of the court, based on relevant circumstances for which the principal is to blame. 4.
At the commercial agent?s request the court may declare such clause to be null and void in full or in part on the ground that, in proportion to the principal?s interest to be protected, the commercial agent is injured unfairly by the clause.
Period of prescription
Legal claims based on articles 439 and 440 become prescribed by one year having elapsed from the date of the fact from which the claim arose.
Applicability article 445
Parties cannot derogate from articles 401, 402, 403 and 426 paragraph 2 and neither from articles 428 paragraph 3, 429, 430, 431 paragraph 2, 432 paragraph 2, 433, 437 paragraph 2, 439, 440, 441, 443 and 444. 2.
Neither can articles 432 paragraph 3, 434 and, prior to termination of the agreement, article 442 be derogated from to the detriment of the commercial agent.