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SWEDISH CODE OF STATUES

Commercial Agency Act


(Закон Швеции о коммерческих агентских договорах)


(promulgated on May 2, 1991)







Если в качестве применимого к агентскому контракту права избрано право Швеции, при разработке контракта и согласовании его условий необходимо учитывать положения Закона о коммерческих агентских договорах





General provisions

§ 1 The expression "commercial agent" in this Act denotes a person who, in business, has agreed with another, the principal, that on behalf of the latter he will independently and enduringly engage in the sale or purchase of goods by obtaining offers to the principal or by concluding agreements in his name.

§ 2 The terms of an agreement which conflict with the provisions of this Act shall apply instead of the provisions of the Act, unless otherwise stated in the Act. Practice that has developed between the parties, as well as business or other customs, shall be placed on a level with the terms of an agreement.

If the Act makes clear that a provision may not be disregarded by agreement, the provision also has precedence over practice that has developed between the parties and over business or other customs.

§ 3 A provision that may not, according to the Act, be disregarded to the disadvantage of the agent may neither be disregarded to the disadvantage of the agent through an agreement stipulating that foreign law shall be applied to the legal relationship, if the legal relationship would otherwise be judged according to this Act.

§ 4 If the agent or his principal so requests, a document setting forth the agency agreement and changes in it shall be prepared and signed by the parties.

The parties cannot waive their right to receive, on request, a document of the kind stated in the first section.

Obligations of the agent

§ 5 In performing his activities, the agent shall safeguard the principal?s interests and act loyally and honestly.

It is especially incumbent upon the agent to

1. make reasonable efforts to obtain offers and, if it is part of his activities, to conclude agreements on such matters that are covered by the agency agreement.

2. 2. inform the principal about offers that have been obtained and agreements that have been concluded as well as about other circumstances of importance for the activities that the agent knows, and

3. 3. follow reasonable instructions given by the principal.

4. Terms of the agreement that conflict with the provisions contained in this section are not binding on the parties.

§ 6 The agent shall take good care of goods and other items which belong to the principal and which are in the agent?s keeping. The agent shall take out the property insurance necessary. The principal?s goods shall be kept separate from other goods.

If the agent is entitled to receive payment for sold goods, he is obliged to keep the funds received separately and to render an account of his activities.

Principal's obligations

§ 7 The principal shall act loyally and honestly towards the agent.

It is especially incumbent upon the principal to

1. supply the agent with samples, descriptions, price-lists and other necessary material in respect of the goods to which the agreement pertains,

2. 2. supply the agent with the information required for implementation of his activities, and

3. 3. inform the agent, without undue delay, that he has accepted or rejected an offer forwarded to him by the agent or that an agreement mediated by the agent has not been fulfilled.

4. The principal shall, without unreasonable delay, inform the agent if he foresees that the scope of the business will be substantially less than that reasonably supposed by the agent.

Terms of the agreement that conflict with the provisions contained in this section are not binding on the parties.

Commission etc.

§ 8 If the agent and the principal have not agreed upon the agent?s remuneration, it shall be determined at what is customary where the agent conducts his business. If there is no such custom, the remuneration shall be determined at what is reasonable in view of all the circumstances involved in the activities.

§ 9 The agent is entitled to commission on a transaction concluded during the period of the agency agreement,

1. if the transaction may be considered to have arisen through the participation of the agent,

2. 2. if, without the agent?s participation, the transaction has been concluded with a third party whom the agent has procured earlier as a customer, provided that the agreement is of the same type or

3. 3. if the agent has been given a certain territory or a certain circle of customers and the transaction has been concluded with a third party belonging to the territory or circle of customers.

4. § 10 The agent is entitled to commission on a transaction concluded after the agency agreement has ceased,

1. if the transaction has been concluded under such circumstances as are referred to in § 9 and the agent or the principal has obtained an offer from a third party during the period of the agency agreement, or

2. 2. if the transaction has arisen mainly through the agent?s participation during the period of the agency agreement and if it has been concluded within a reasonable time after cessation of the agency agreement.

3. An incoming agent is not entitled to commission in accordance with § 9 on a transaction which gives the outgoing agent the right to commission in accordance with the first section if, in view of the circumstances, it is not reasonable for the commission to be split between the agents.

§ 11 Commission shall be paid not later than one month after the end of the quarter in which the commission was earned.

Commission is earned when and to the extent any of the following circumstances is at hand:

1. The principal has fulfilled the agreement with a third party.

2. 2. The principal should, according to the agreement with a third party, have fulfilled the agreement.

3. 3. A third party has fulfilled the agreement.

4. The agent is not bound bound by terms of the agreement which are less favourable to him than the provisions contained in the first section.

Nor is the agent bound by terms of the agreement implying that the commission is earned subsequent to completion of the agreement by a third party or would have been so earned if the principal had fulfilled the agreement as he ought to have done.

§ 12 The agent loses his right to commission if it is shown that the agreement between the principal and a third party has not been implemented and that this is not attributable to the principal or any circumstance associated with him.

If a third party has failed to implement the agreement because the principal has, without the consent of the agent, granted him respite for implementation or agreed with him on cancellation of the agreement, the agent?s right to commission is not affected.

If a third party carries out the agreement only in part, the agent has the right to commission on the part corresponding to what has been carried out, if nothing to the contrary follows from the first or second section.

If the agent?s demand for commission is unsuccessful because of the provisions contained in sections 1-3, he shall pay back the excess he has received.

The agent is not bound by terms of the agreement which are less favourable to him than the provisions contained in sections 1-3.

§ 13 The principal shall, not later than one month after the end of each quarter, give the agent a commission statement showing the commission that has been earned during the quarter. The commission statement shall contain all information of importance for calculation of the commission.

If the agent has wholly or partly lost his right to commission on an agreement, information about this shall be provided in the commission statement pertaining to the quarter in which the right to commission was lost. The commission statement shall state the reason for the loss of the right to commission.

The agent is not bound by contractual terms that are less favourable to him than the provisions contained in this section.

§ 14 The agent has the right to receive all information which is available to the principal and which the agent needs to enable him to check whether the commission statement contains the amounts of commission which he has earned. Such information includes extracts from the principal?s accounting records.

If, within a reasonable time of presentation of such a request, the principal does not supply the agent with information referred to in the first section, or if there is reason to suppose that this information or the particulars in the commission statement are incorrect, the agent has the right to examine the principal?s accounting records to the extent that is necessary. In that connection, the principal may decide whether the examination shall be carried out by the agent himself, by an authorized public accountant or by an approved accountant appointed by the agent.

The agent is not bound by contractual terms that are less favourable to him than the provisions contained in this section.

§ 15 If the agent has not received his commission or other remuneration in time from the principal or if there are strong reasons to suppose that he will not receive such commission or remuneration, the agent has the right, as security for his claim, to withhold goods, material and documents belonging to the principal which the agent has received in order to perform his activities. However, letters of proxy and other documents of significant importance to the principal may not be withheld.

If the agent has bought goods on behalf of the principal and forwarded the goods to the principal, or if the agent has returned goods to the principal which he had received for sale, the agent may, in order to secure his right in accordance with the first section, prevent the goods from being delivered to the principal. This applies even if the principal has received a transport document in respect of the goods.

The agent?s right to withhold goods, material and documents ceases when the principal has furnished acceptable security for the claim.

Terms of the agreement that are less favourable to the agent than the provisions contained in this section are not binding on the agent.

§ 16 The agent may sell goods that he has withheld in accordance with § 15 after three months from the date on which he informed the principal that the goods were being withheld. In that connection, the agent may use the proceeds from the sale to cover the claims from which the goods have served as security. Sale may take place privately or by public auction.

If the goods are exposed to rapid destruction or deterioration or if they require unduly expensive care, they may be sold earlier than what is stated in the first section.

If the principal has gone bankrupt, § 10 in chapter 8 of the Bankruptcy Act (1987:672) is valid instead.

Terms of the agreement that are less favourable to the agent than the provisions contained in this paragraph are not binding on the agent.

Relations with a third party

§ 17 The agent may not, without special authorization, enter into an agreement on sale or purchase on behalf of the principal.

Special provisions in the Door-to-Door Sales Act (1981:1361) are applicable to door-to-door sales.

§ 18 If the agent has concluded an agreement on sale or purchase on behalf of the principal without being authorized to do so, the principal shall, if he does not approve the agreement, inform the third party accordingly. The principal shall give this information without unreasonable delay after receiving news about the agreement. If the principal does not do this, he is bound by the agreement.

§ 19 If the principal does not wish to accept an offer that the agent has received, the principal shall inform the third party accordingly without unreasonable delay after acquiring knowledge of the offer. If he does not do this, the offer is deemed to be accepted.

What has been said in the first section is not valid when the agent and the third party have agreed that the offer shall lapse if the principal does not expressly accept it.

§ 20 If a third party has submitted an offer to the agent and the latter has forwarded the offer to the principal, the third party has the same right to withdraw the offer from the principal as if he himself had submitted the offer.

What has been stated in the first section is not valid if something to the contrary has been agreed between the agent and the third party.

§ 21 If a third party, who is engaged in business, has negotiated with the agent and thereafter received a communication from the principal that the principal confirms an agreement or accepts an offer submitted by the agent, the third party shall, if he considers that he has not concluded any agreement or submitted any offer or that the agreement or offer is incorrectly stated, inform the principal accordingly without unreasonable delay. If the third party fails to do this and if he can neither show that the communication was incorrect, he is considered to have concluded an agreement with the contents shown by the communication from the principal.

§ 22 The agent may not, without special authorization, receive payment for sold goods or, after conclusion of the agreement, grant a respite for payment or a price reduction or other change in the agreement.

If the principal learns that the agent, without authorization, has adopted a measure referred to in the first section concerning an agreement which may be considered to have arisen through the participation of the agent or which has been concluded with a third party who belongs to a territory or a circle of customers assigned to the agent, the principal shall, if he does not wish to approve the measure, inform the third party accordingly without unreasonable delay. If he fails to do this, he will be deemed to have approved the measure.

Special provisions in the Door-to-Door Sales Act (1981:1361) apply to door-to-door sales.

§ 23 If a third party wishes to cite a faut i purchased goods or a delay in delivery or if he wished to inform the principal of some other matter concerning fulfilment of an agreement, he may turn to the agent if the agreement may be considered to have arisen through the participation of the agent or to have been concluded with a third party belonging to a territory or a circle of customers assigned to the agent. The agent may not, without special authorization, reach any settlement as a result of such communication.

If the principal learns that the agent has, without authorization, reached such settlement as is referred to in the first section, the principal shall, if he does not wish to approve the settlement, inform the third party accordingly without unreasonable delay. If he fails to do this, he will be deemed to have approved the settlement.

Cessation of the agency agreement etc.

§ 24 For an agency agreement which has not been concluded for a fixed period, notice of cancellation as stated in the second section may be given by the agent or the principal.

Notice of cancellation of one month is required during the first year of the period of the agency agreement. The notice period is then extended by one month for each partial or complete year of the agency agreement period that has elapsed, until the notice of cancellation amounts to six months.

The parties may not agree in advance on a shorter period of notice than that stated in the second section. However, they may agree on notice of three months by the agent although the period of the agency agreement has been three years or more.

If the parties agree to a longer period of notice of cancellation than that stated in the second section, the period of notice of cancellation by the principal may not be shorter than that by the agent.

Notice of cancellation is counted from the end of the calendar month during which notice is given.

§ 25 An agency agreement concluded for a fixed period ceases on expiry of the period of agreement.

If the parties continue the agency relationship after expiry of the period of agreement, the agreement shall subsequently be regarded as an agreement without a fixed period. In calculating notice of cancellation according to § 24, the entire duration of the agency relationship shall then be taken into account.

Terms of the agreement in conflict with the provisions of the second section are not binding on the parties.

§ 26 The agent or the principal may cancel the agreement with immediate effect if

1. the opposite party has failed to fulfil his obligations in accordance with the agreement and if the breach of contract by the opposite party is sufficiently important to the party concerned, and if the opposite party has realized or should have realized this, or

2. 2. there is otherwise an important reason for renouncing the agreement prematurely.

3. The party wishing to cancel the agreement prematurely shall do this without unreasonable delay after he has learnt, or should have learnt, about the circumstance that he is citing. If he fails to do this, he loses the right to cite the circumstance.

The agent is not bound by terms of the agreement that are less favourable to him than the provisions contained in this paragraph.

§ 27 If the agent or the principal is declared bankrupt, the agency agreement ceases to be valid. However, despite the bankruptcy of the principal, the agent may extend the validity of period of the agency agreement until the expiry of the day after which the announcement of the bankruptcy declaration is published in the Swedish Government Gazette, if he did not earlier learnt of, or should have learnt of, the bankruptcy.

§ 28 When the agency agreement ceases, the agent is entitled to severance payment if, and to the extend that,

1. the agent has brought the principal new customers or substantially increased trade with the existing circle of customers and if the principal will benefit substantially from the change, and

2. 2. the severance payment is reasonable in view of all circumstances, especially the loss of commission on agreements with the customers stated in point 1.

3. The provisions contained in the first section shall be correspondingly applicable if the agency agreement ceases because of the agent?s death.

The severance payment shall amount to a sum not exceeding payment for one year, calculated on the basis of the average for the past five years or the shorter period for which the agreement has lasted.

Terms of agreement that are less favourable to the agent than the provisions contained in this paragraph are not binding on the agent.

§ 29 The agent is not entitled to severance payment in accordance with § 28 if

1. the principal gives notice of cancellation of the agreement because the agent has intentionally, or through carelessness, neglected his obligations to the principal and if the neglect is of such a nature that it gives the principal right to cancel the agreement with immediate effect in accordance with the first section of § 26, point 1, or

2. 2. the agency agreement ceases because of the agent?s bankruptcy, or

3. 3. the agent, with the principal?s consent, assigns the agency to some other party.

4. Terms of the agreement that are less favourable to the agent than the provisions contained in this paragraph are not binding on the agent.

§ 30 If the agent himself gives notice of cancellation, he is entitled to severance payment in accordance with § 28 only if

1. the notice of cancellation is based on a circumstance, associated with the principal. Of such a kind that the agent is entitled to cancel the agreement with immediate effect in accordance with § 26, or

2. 2. in view of the agent?s age or illness or similar circumstance, the agent cannot be required to continue his business.

3. Terms of the agreement that are less favourable to the agent than the provisions contained in this paragraph are not binding on the agent.

§ 31 The agent loses his right to severance payment if, within one year of cessation of the agreement, he does not inform the principal that he demands such payment.

Terms of the agreement that are less favourable to the agent than the provisions of this paragraph are not binding on the agent.

§ 32 If the agency agreement has ceased, the agent shall, until such time as the principal can himself watch over his interests, adopt such measures as are necessary to protect the principal from loss, if such measures do not cause substantial costs, inconvenience or financial risk for the agent. The agent is entitled to reasonable remuneration for the measures adopted.

§ 33 When the agency agreement has ceased, the agent shall return to the principal goods, material and documents which he received in order to implement the agreement. However, the agent is entitled to withhold the principal?s property as security for a claim in accordance with § 15 and to sell it in accordance with § 16

Damages

§ 34 If the agent or the principal fails to carry out his obligations in accordance with the agency agreement or the law, he is obliged to pay the other party damages arising thereby, if he cannot show that the failure is not due to neglect on his part.

If the agency agreement ceases to be valid as a result of bankruptcy of one of the parties, the other party is entitled to compensation for the loss arising thereby.

The party intending to claim damages shall inform the other party accordingly without unreasonable delay after he has learnt, or should have learnt, of the circumstances on which the demand is based. If he does not do so, he loses his right to damages except in those cases where the other party has acted with gross negligence or contrary to his word of honour.

Terms of the agreement that are less favourable to the agent than the provisions contained in this paragraph are not binding on the agent.

Competition clauses

§ 35 An agreement between the agent and the principal stipulating that the agent shall not conduct business after cessation of the agency agreement (competition clause) is binding on the agent only and to the extent that the competition clause

1. has been drawn up in writing

2. 2. relates to the area or the circle of customers assigned to the agent, and

3. 3. relates to goods of the kinds to which the agency agreement is applicable.

4. The agent is not bound by competition clause to the extent that it relates to a period exceeding two years after cessation of the agency agreement.

Notwithstanding the provisions contained in this paragraph, the Conclusion (1915:218) of Contracts and Other Legal Acts in the Field of Rights to Property is applicable to a competition clause.

Certain communication

§ 36 If a communication has been sent in an appropriate manner by the agent in accordance with § 16, 31 or 34, or by the principal in accordance with § 18, 19, 22, 23 or 34, or by a third party in accordance with § 21, the communication may be cited even if it is delayed, distorted or has failed to reach the intended recipient.

1. This law enters into force on January 1, 1992.

2. 3. Where agency agreements have been concluded before entry of the law into force, the provisions of the Factors, Commercial Agents and Commercial Travellers Act (1914:45) shall be applicable until the end of 1993.

4. On behalf of the Government.

INGVAR CARLSSON

LAILA FREIVALDS

(Ministry of Justice)










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