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  Federal Austrian Law

Federal Austrian Law regarding the legal status of self-employed Commercial Agents

Law on Commercial Agents (short title)


Федеральный закон Австрии о правовом статусе независимых коммерческих агентов

Закон о коммерческих агентах (краткое наименование)


FEDERAL LAW GAZETTE, 1993





Если в качестве применимого к агентскому договору права избрано австрийское право, при разработке договора и согласовании его условий необходимо учитывать положения Закона о коммерческих агентах





The Austrian National Assembly has passed the following resolution:

Definition and activity of a Commercial Agent

Definition of the term self-employed

Commercial Agent

§1. (1) A Commercial Agent shall mean a person who has been granted continuing authority by another person (hereinafter called the "Principal") to negotiate or conclude transactions, except for transactions involving immovable property, on behalf of and in the name of that Principal and who performs this activity on a self-employed and commercial basis.

(2) The Principal may also be a Commercial Agent.

(3) Conclusion of transactions by the

Commercial Agent

§2. (1) The Commercial Agent may only conclude transactions on behalf of and in the name of the Principal if he is authorized so to do.

(2) If a Commercial agent who only has authority to negotiate transactions concludes a transaction with a third party in the name of the Principal, the said Principal will be deemed to have authorized the transaction if he does not notify the third party that he repudiates the transaction immediately after he has become aware of conclusion of the transaction.

Authority of the Commercial Agent

§3. (1) The Commercial Agent may only accept payments for the Principal if he is authorized to do so.

(2) If the authority includes the entitlement to accept payments, the Commercial Agent will only be deemed to be authorized to receive payments which are in accordance with the agreed conditions. Such entitlement shall not, on the other hand, include the authority to amend the terms of payment agreed on conclusion of the transaction, and in particular the right to effect compromises or grant discounts.

(3) If the activity of the Commercial Agent includes travelling, he shall also be authorized to collect the purchase price arising from the sales concluded by him or to authorize payment deadlines therefor.

(4) Notification of defects in a product, statements that a product is being made available and other statements by means of which customers protect their rights may also be made to the Commercial Agent.

(5) The Commercial Agent shall be entitled to exercise the right falling to the Principal to ascertain the condition of the goods; he shall not be entitled to dispose of the goods when in doubt unless the condition thereof makes this urgently necessary.

(6) A third party shall only be required to accept the assertion against him of restrictions on the authority of the commercial Agent if he was, or must have been, aware of such restrictions.

Rights and obligations of the Principal and of the

Commercial Agent

Instruments

§4. The Principal and the Commercial Agent shall be obliged to provide the other party, at the request of the latter, with a signed instrument which contains the text of the agency agreement which is valid at that time.

Obligations of the Commercial Agent

§5. The Commercial Agent shall be obliged to endeavour to negotiate or conclude transactions. In performing his activities, he must look after the Principal`s interests, showing the care of a prudent businessman, and shall, in particular, be obliged to notify the Principal of the necessary information and to inform the Principal of every transaction which he has concluded for the Principal.

Obligations of the Principal to provide support

§6. (1) The Principal must support the Commercial Agent in the exercise of his activity.

(2) The Principal must in particular:

(3) 1. place the necessary documentation at the disposal of the Commercial Agent and provide him with all the information necessary for the performance of his activity,

2. 3. inform the Commercial Agent immediately if he foresees that the scope of transactions will be much smaller than the Commercial Agent might have expected from the circumstances, and in particular on the basis of the previous scope of business or the information provided by the Principal,

4. 5. to inform the Commercial Agent immediately of acceptance or repudiation of a transaction which has been negotiated or concluded without authorization or of the non-execution of a transaction negotiated or concluded by him.

6. Prohibition on the acceptance of recompense

§7. (1) In the absence of any contrary trade practice in the line of business in question, the Commercial Agent may not, without the consent of the Principal, accept recompense from the third party with whom he concludes or negotiates transactions for the Principal.

(2) The Principal may require the Commercial Agent to hand over the unlawfully received recompense and to make good any damage in excess of this amount.

Remuneration, commission

§8. (1) Remuneration of the Principal may take the form of a commission or another consideration.

(2) To the extent that no other agreement has been reached, commission is to be due to the commercial Agent as Remuneration for each transaction which is brought about as a result of his activity. If no contrary trade practice exists in the line of business in question, no right to commission is acquired simply by naming the third party.

(3) In case of doubt, the Commercial Agent shall also have due to him commission for such transactions which are concluded without his direct intervention during the period of existence of the contractual relationship between the customers assigned to him or supplied by him and the Principal.

(4) If the Commercial Agent is expressly appointed as the sole agent for a certain area or for a certain group of customers, there will also be due to him, in case of doubt, commission for transactions which have been concluded without his intervention during the period of existence of the contractual relationship by the Principal or for the latter with the customers pertaining to the area or to the group of customers assigned to the Commercial Agent.

Accrual of the claim for commission

§9. (1) The claim for commission shall arise when the transaction negotiated between the Principal and the third party becomes legally valid, if and to the extent that

1. the Principal has executed the transaction

2. or

2. the Principal should have executed the transaction under the contract with the third party

3. or

3. the third party has executed the transaction by making payment.

4. (2) The claim for commission shall arise at the latest when the third party has executed his part of the transaction or would have done so if the Principal had executed his part of the transaction.

(3) The claim for commission shall cease to be valid if and to the extent that it is ascertained that the contract between the third party and the Principal is not being executed and this is due to circumstances which are the fault of the Principal. In the event of a delay in payment on the part of the third party, the Principal must, however, demonstrate that all reasonable steps have been taken to make the third party effect payment.

Level of commission

§10. (1) In the absence of any other agreement, the level of commission shall be based on the rates customarily allowed for the line of business in question in the place of business of the Commercial Agent.

(2) Discounts which the Principal has granted to the third party may not be deducted when the commission is calculated unless they were agreed when the transaction was concluded or there is a trade practice to this effect in the line of business in question. Discounts for payment in cash are under no circumstances to be deducted; this also applies to incidental expenses, in particular to freight, packaging, customs duties or taxes unless the incidental expenses have been specially charged to the third party. Turnover tax which is shown separately in the invoice solely because of the tax regulations in force is not considered to have been specially charged.

Commission after termination of the

contractual relationship

§11. (1) Commission shall be due to the Commercial Agent for transactions brought about after termination of the contractual relationship if and to the extent that

1. the transaction is mainly attributable to his efforts during the period covered by the contract and conclusion occurred within a reasonable period after termination of the contractual relationship

2. or

2. a binding statement by the third party that he intended to conclude the transaction was received by the Commercial Agent or the Principal before the contractual relationship was terminated.

(2) A subsequent Commercial Agent has no claim for commission if this is due to his predecessor, unless the circumstances justify sharing of the commission between him and his predecessor.

Prevention of earnings

§12. (1) If the Commercial Agent is prevented by the Principal, contrary to the terms of the contract, from earning commission to the extent agreed or to the extent to be expected under the agreements reached, appropriate compensation will be due to him

(2) The same shall apply if prevention is due to sale during the contractual relationship by the Principal of his enterprise or assigned distribution of the goods to a joint sales outlet.

Repayment of expenses

§13. (1) The Commercial Agent may not demand repayment of general costs and expenses incurred during business activity.

(2) On the other hand, in the absence of any other agreement or contrary trade practice, the Principal must reimburse him for exceptional expenses he is obliged to incur as a result of acting on the instructions of the Principal.

Settlement and payment of advances

§14. (1) Settlement of claims for commission is to be made at the latest on the last day of the month following the quarter in which the claim for commission arises. If the contractual relationship ends before expiry of one calender quarter, settlement is to be made at the latest on the last day of the month after which the claim arose. Such settlement must contain all the information necessary for calculation of the commission.

(2) The Commercial Agent may request an advance in accordance with his claims which have arisen for commission and expenses.

Due date of the commission

§15. The claim for commission shall become due on the day on which settlement is to be made out according to the agreement reached or according to legislation.

Extract from and inspection of the books

§16. (1) The Commercial Agent may require the Principal to supply him with an extract from the books and any other information to enable him to check the amount of the commission due to him.

(2) If the Commercial Agent is able to furnish prima facie evidence that the extract from the books is incorrect or incomplete or that there has been a refusal to supply him with an extract from the books, he may, even before the law suit, plead for submission of such an extract before the district court for the administrative district in which the account books are situated; he may at the same time plead for the Principal to be instructed to provide additional information which will permit calculation in full of the claim which the Commercial Agent is entitled to make.

(3) The contents of the account books are, insofar as they concern the claims of the Commercial Agent, to be inspected by both parties together, an extract being prepared if necessary. The rest of the contents of the books are to be disclosed to the judge to the extent that this is necessary to check that they are being kept properly.

(4) If the Principal objects to personal inspection by the Commercial Agent and the parties are unable to agree on a representative, the judge may order that the books be inspected by a bookkeeping expert appointed by the court.

(5) The provisions of the code of civil procedure regarding the preservation of evidence (§§ 384 to 389 ZPO) are otherwise to apply, mutatis mutandis.

(6) The limitation period governing the Commercial Agent`s claims shall continue to run during proceedings according to paras 1 to 5, but is shall under no circumstances come to an end until three months have elapsed after the proceedings have reached a final and absolute conclusion and the demands for an extract from the books, inspection of the books and additional information have been met.

Profit sharing

§17. If it is stipulated that the Commercial Agent`s remuneration shall wholly or partly be composed of a proportion of the profits resulting from all or some of the transactions or that the profits shall determine the level of remuneration in some other way, settlement is to be made after the end of the financial year on the basis of the annual accounts. §§ 15 and 16 are to apply mutatis mutandis.

Statute of limitations

§18. (1) All claims arising from the contractual relationship between the Principal and the Commercial Agent shall become statute-barred after three years.

(2) In the case of claims which are included in the settlement, the limitation period shall commence at the end of the year in which settlement has been made, but in the case of claims which are not included in the settlement, the limitation period shall commence at the end of the year in which the contractual relationship is terminated. In the case of claims which were only to be settled after termination of the contractual relationship, the limitation period shall commence at the end of the year in which settlement should have been made.

(3) If the claim is made to the Principal, the limitation period shall be suspended until the written reply of the Principal has been received.

Right of retention

§19. The Commercial Agent shall be able to assert the commercial right of retention, also with regard to the samples supplied to him by the Principal, under the conditions specified in §§ 369 and 370 HGB {commercial code}. § 369 para 3 HGB does not conflict with assertion of the right of retention of the samples if the contractual relationship is terminated. The Commercial Agent shall be obliged, however, to return the samples without delay if the Principal pays into court an amount which corresponds to the value of the samples or the amount of the claim, or provides security for this sum in some other manner.

Termination of the contractual relationship

Expiry of notice

§20. A contract concluded for a specific period shall be terminated on expiry of the period for which it was entered into. If the contractual relationship is continued by both parties after expiry of the agreed period, it shall be deemed to have been extended for an indefinite period.

Giving notice

§21. (1) If the contract is concluded for an indefinite period, it can be terminated by either party with observation of a one-month period of notice in the first year of the contract; after commencement of the second year of the contract, the period of notice shall, however, last at least two months, at least three months after commencement of the third year of the contract, at least four months after commencement of the fourth year of the contract, at least five months after commencement of the fifth year of the contract and at least six months after commencement of the sixth year of the contract and in subsequent contract years. When calculating the duration of the period of notice for contracts which were initially entered into for a specific period, but which have been extended for an indefinite period under § 20, the duration of the contract entered into for a specific period is to be taken into account.

(2) Agreement to observe periods shorter than those specified in paragraph 1 shall be invalid.

(3) If the parties reach agreement on longer periods than those stipulated in paragraph 1, the period to be observed by the Principal may be no shorter than the period to be observed by the Commercial Agent; if this provision is not complied with, the longer period to be observed by the Commercial Agent shall also apply to the Principal.

(4) Insofar as the parties do not agree otherwise, the end of the period of notice must coincide with the end of a calendar month.

Premature termination

§22. (1) The agency contract may be terminated by either party at any time, without observance of a period of notice, for good cause.

(2) The following are in particular to be deemed to constitute good causes which entitle the Principal to terminate the contractual relationship prematurely:

1. if the Commercial Agent becomes unable to exercise his activity;

2. 3. if the Commercial Agent is guilty of an action which makes him seem unworthy of the trust of the Principal, in particular if he accepts recompense contrary to what is stipulated in § 7, if he passes on orders to the Principal which have not been granted or if he otherwise misleads him with regard to important commercial matters;

4. 5. if the Commercial Agent neglects or refuses to act for the Principal for a considerable period in view of the circumstances, or if he infringes other important contractual provisions;

6. 7. if the Commercial Agent is guilty of violence against or substantial defamation of the Principal;

8. 9. if the Commercial Agent is declared bankrupt.

10. (3) The following are in particular to be deemed to be good causes which will permit the Commercial Agent to effect premature termination of the contractual relationship;

1. if he becomes incapable of exercising his activity

2. or

2. if the Principal

3. a) improperly reduces or withholds the commission due to the Commercial Agent or infringes other important contractual provisions or

b) c) is guilty of violence against or substantial defamation of the Commercial Agent, or

d) e) ceases to be active in the line of business in which the Commercial Agent mainly operates.

f) Claims in the event of premature termination

§23. (1) If one of the parties is responsible for premature termination of the contractual relationship under § 22, the other party shall be entitled to demand compensation for the damage caused to him as a result. If one party terminates the contractual relationship prematurely in the absence of a just cause, the other party may demand performance of the contract or compensation for the damage caused to him. This shall also apply if the contractual relationship has been terminated contrary to what is stipulated in § 21.

(2) If both parties are responsible for premature termination of the contractual relationship, with or without a just cause, the judge must decide at his discretion whether and how much compensation should be paid.

Compensatory claim

§24. (1) After termination of the contractual relationship, the Commercial Agent shall be entitled to make an appropriate compensatory claim if and to the extent that

1. he has brought the Principal new customers or has significantly increased the volume of existing business,

2. 3. it is to be expected that the Principal or his legal successor will be able to derive considerable advantage from this volume of business even after termination of the contractual relationship, and

4. 5. payment of compensation is equitable having regard to all the circumstances and, in particular, the commission lost by the Commercial Agent on the business transacted with the customers in question.

6. (2) Entitlement to make a compensatory claim shall also exist if the contractual relationship ends owing to the death of the Commercial Agent and the conditions specified in paragraph 1 apply.

(3) Entitlement to make a claim shall not exist if

(4) 1. the Commercial Agent has given notice of termination or has prematurely terminated the contractual relationship unless circumstances which are the fault of the Principal are the reason for this, even they do not constitute a good cause as specified in § 22 or the commercial Agent cannot be expected to continue his activity because of age, illness or frailty, or

2. 3. the Principal has given notice of termination or has prematurely terminated the contractual relationship owing to culpable behaviour on the part of the Commercial Agent which constitutes a good cause under § 22 or

4. 5. the Commercial Agent transfers the rights and obligations which he has under the contract to a third party in accordance with an agreement reached with the Principal owing to termination of the contractual relationship.

6. (4) In the absence of an agreement which is more favourable to the Commercial Agent, the compensatory claim shall amount to no more than the annual remuneration which is calculated from the average of the past five years. If the contractual relationship has lasted less than five years, the average for the entire duration of the contract shall prevail.

(5) The Commercial Agent shall lose his entitlement to claim compensation if, one year after termination of the contractual relationship, he has not informed the Principal that he is asserting his rights.

Competition clause

§25. Any agreement which results in limitation of the commercial activity of the Commercial Agent during the period following termination of the contractual relationship shall be invalid.

Bankruptcy of the Principal

§26. (1) The contractual relationship shall be terminated if the Principal is declared bankrupt. The Commercial Agent shall, however, be obliged, in the event of imminent danger, to continue his activity until other provisions can be made.

(2) If the contractual relationship is terminated owing to bankruptcy before expiry of the specific period for which it was entered into, or if a period of notice was agreed in the contract, the Commercial Agent shall be entitled to demand compensation for the damage caused to him.

Applicability of legislation

Mandatory provisions

§27. (1) The provisions of §§ 9 paras 2 and 3, 12 paras 1, 14, 15, 16, paras 1 and 2, 21 paras 1 and 3, 23, 24 and 26 para 2 may be neither set aside nor limited in advance by the contract to the detriment of the Commercial Agent.

(2) The provisions of §§ 4, 5 and 6 may be neither set aside nor limited in advance by the contract, either to the detriment of the Commercial Agent or to the detriment of the Principal.

Relationship with other legislation

§28. (1) The provisions of this Federal Austrian law do not apply to the negotiation and conclusion of insurance transactions, to the legal relationships between employers and employees covered by the Law on Employees, BGGI. {Federal Law Gazette} No. 292/1921, in the version which is respectively valid, or to the legal status of commercial brokers within the terms of § 93 HGB.

(2) To the extent that this Federal Austrian law does not provide otherwise, the provisions of the HGB and the ABGB {General Civil Code}, in their respectively valid versions, are to be applied to the contractual relationship governed by this Federal Austrian law.

Final and transitional provisions

Coming into effect and executive provision

§29. (1) This Federal Austrian law shall come into force on 1 March 1993.

(2) The Federal Austrian law of 24 June 1921, BGBI. No. 348, concerning the legal status of self-employed Commercial Agents (Law on Commercial Agents) in the version of 4. EVHGB (Introductory Order to the Commercial Code) of 24 December 1938, dRGBl. I S {Reich Law Gazette} 1999, of the Federal Austrian law of 13 July 1960, BGBl. No. 153, and of the Federal Austrian law of 15 June 1978, BGBl. No. 305, shall cease to apply on 28 February 1993, except for the legislation applying to other negotiators of transactions within the terms of § 29; it shall continue to apply until 31 December 1993 to contracted relationships in existence on 28 February 1993.

(3) The Federal Minister of Justice has been entrusted with enforcement of this Federal Austrian law.

Klestil

Vranitzky









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