Swiss Code of Obligations
(Art. 418a - 418v)
Положения Федерального кодекса обязательственного права Швейцарии об агентских договорах
Если в качестве применимого к агентскому контракту права избрано право Швейцарии, при разработке контракта и согласовании его условий необходимо учитывать положения Федерального кодекса обязательственного права Швейцарии об агентских договорах
Art. 418a (1)
An agent is a person who obligates himself to act on a continuous basis as an intermediary on behalf of one or several principals in business transactions (Art. 412), or to conclude such transactions in their name and for their account without being in an employment relationship with such principals (Art. 319 ss). (2)
For agents who exercise this activity only as a secondary occupation, the provisions of this chapter are applicable to the extent that the parties have not agreed upon otherwise in writing (Art. 12-15). The provisions regarding del credere (Art. 418c, subsect. 3), prohibition against competition (Art. 418d, subsect. 2), and termination of contract for valid reasons (Art. 418r) may not be dispensed with to the detriment of the agent.
In addition, the provisions concerning the brokerage contract (Art. 412 et seq.) are also applicable to the agent who acts as intermediary in business transaction for third persons, and those regarding the commission contract (Art. 425 et seq.) are applicable to the agent who concluded business transactions on behalf of third persons.
Art. 418c (1)
The agent must safeguard the interest of his principal with the care of an ordinary merchant. (2)
He may also, unless otherwise agreed upon in writing (Arts. 12-15), act on behalf of other principals. (3)
The agent?s obligation to guarantee payment or any other fulfilment of the customer?s liabilities (Art. 430, 418a, para. 2), or to bear fully or partially the costs of collecting claims, can only be agreed upon in writing. In such event, the agent has an inalienable right to an adequate special compensation (Art. 430, para. 2).
Art. 418d (1)
The agent may not exploit or inform others of business secrets (Art. 340, para. 1) with which he gas been entrusted, or of which he has obtained knowledge in the course of his agency relationship, including the use or disclosure even after termination of the contract (Art. 324a, para. 4). (2)
The rules regarding employment contracts (Art. 340, 340c) are applicable accordingly to a contractual prohibition against competition (Art. 418a, para. 2). If a prohibition against competition is stipulated, the agent has an inalienable right (Art. 418a, para. 2) to an adequate special compensation upon termination of the agency contract.
Art. 418e (1)
The agent is deemed only to have the authority to act as an intermediary in business transaction, to receive notices and other declarations of defect or non-performance by which the customers asserts his right arising out of faulty performance by the principal, or reserves such rights, and to exercise the principal?s rights to secure evidence thereof. (2)
The agent is not, however, deemed to have the authority to accept payments, to grant terms of payment, or to agree with the customers upon other alterations of the contract. (3)
Unaffected thereby are Articles 34 and 44, paragraph 3 of the Federal Act on Insurance Contracts, of April 2, 1908.
Art. 418f (1)
The principal must perform all acts necessary to enable the agent to successfully perform his functions (Art. 91). In particular, he must put he necessary documents at the agent?s disposal (Art. 418m, para. 1). (2)
He must immediately inform the agent if he anticipates that a considerably lower volume of business can or should be concluded than was agreed upon or expected under the circumstances (Art. 418m, para. 1). (3)
If a certain territory or a predetermined clientele has been allocated to the agent, he has exclusivity, unless otherwise agreed upon in writing (Arts. 12-15).
Art. 418g (1)
The agent is entitled to the agreed upon or customary brokerage of signing commission on all business transactions in which he acted as intermediary (Art. 413), or which were concluded (Art. 418t) during the term of the agency agreement (Art. 418t), and, unless otherwise agreed upon in writing, on such business transaction which were concluded during the duration of the agency agreement by the principal without the agent?s cooperation, provided that the agent has solicited the third person as a customer for business transactions of such kind. (2)
The agent, to whom a certain territory or a certain clientele is exclusively allocated (Art. 418f, para. 3), is entitled to the agreed upon commission, or in the absence of an agreement to the customary commission, on all business which is concluded with customers in that territory or of that clientele during the term of the agency contract. (3)
Unless otherwise agreed upon in writing, the claim for a commission arises as soon as the business transaction with the customers is legally concluded (Art. 413, paras. 1, 2).
Art. 418h (1)
The agent loses his claim for a commission to the extent that the performance of a concluded business transaction does not occur for reasons for which the principal is not responsible. (2)
The claim for commission, however, becomes fully extinct, if the performance by the third party, in consideration of which the principal has already performed, does not occur, or fails to such a substantial extent that the principal cannot reasonably be expected to pay a commission.
Unless otherwise agreed upon or customary, the commission becomes due at the end of the calendar half year during which the business was concluded. In the insurance business, however, payment is due in conformity with the time for payment of the first annual premium (Art. 75).
Art. 418k (1)
If the agent is nit obligated by written agreement (Arts. 12-15) to submit a statement of account on commissions, the principal shall submit to him a statement of account in writing on each due date (Art. 418i), indicating the business transactions upon which a commission is due. (2)
Upon request, the agent is entitled to inspect the company books and vouchers relevant to the statement of account (Art. 322c). The agent may not waive this right in advance. (3)
Art. 418l (1)
Unless otherwise agreed upon or customary, the agent has a claim for a collection commission for amounts collected and remitted in accordance with instructions received (Art. 418e, para.2). (2)
Upon termination of the agency relationship, the agent?s authority to collect, and his claim to a further collection commission, ceases.
Art. 418m (1)
The principal must pay the agent an adequate compensation if he is at fault, in breach of his legal (Art. 418f) or contractual obligations, for preventing the agent from earning the commission to the extent agreed upon or to the extent to be expected under the circumstances (Art. 91). An agreement to the contrary is invalid. (2)
If an agent, who is prohibited from simultaneously representing another principal, is prevented without fault from performing his function (Art. 324a) due to illness, compulsory Swiss military service, or similar reasons, he is entitled to adequate compensation for a relatively short period of time (Art. 324) in relation to the loss of earnings sustained, provided that the agency relationship has lasted for a minimum period of one year. The agent may not waive his right in advance.
Art. 418n (1)
Unless otherwise agreed upon or customary, the agent has no claim for the reimbursement of costs and expenses incurred in the ordinary course of his business, with the exception of those which he has incurred upon special instructions of the principal, or as his agent without mandate (Art. 419 et seq.), such as expenses for freight and customs duties. (2)
The obligation to reimburse is independent from the conclusion of the legal transaction.
Art. 418o (1)
As a guarantee for claims due which arise under the agency relationship, and, in the event of insolvency of the principal, also for claims not yet due, the agent has the right of retention on all movable property and financial instruments which are in his possession pursuant to the agency relationship as well as on amounts received from third parties (Art. 418e, para. 2) pursuant to an authority to collect. The agent may not waive his right of retention in advance. (2)
Such right of retention cannot be exercised on price lists or on lists of customers.
Art. 418p (1)
If the agency contract was concluded for a determined period of time, or if such period can be deduced from its purpose, the agency contract is terminated without further notice upon the expiration of such period. (2)
If an agency contract with a determined period of time is continued by both parties by tacit consent after expiration of such period, the contract is deemed to have been renewed for the same period of time, but not for longer than one year. (3)
If notice is required to terminate the contract, its omission by both parties is deemed to be a renewal of the contract (Art. 418p, para. 2).
Art. 418q (1)
If an agency contract was not concluded for a determined period of time, and if such period cannot be deduced from its purpose, it can be terminated by either party during the first year of the contract period effective as of the end of a calendar month (Art. 336a) following the month during which notice was given. An agreement for a shorter period of notice must be in writing (Arts. 12-15). (2)
If the contractual relationship has lasted for a period of at least one year (Art. 336b), it may be terminated as of the end of a calendar quarter by giving two months? notice. The parties may agree, however, upon a longer notice period, or upon another termination date. (3)
No agreement shall provide for different notice periods for principal and for agent (Art. 336, para. 2).
Art. 418r (1)
For valid reasons, either the principal or the agent may, without notice, immediately terminate the contract (Art. 337, 418a, para 2). (2)
The provisions regarding the employment contract are applicable accordingly (Art. 337 et seq.).
Art. 418s (1)
The agency contract terminates with the death of the agent, or his legal incapacity, or with the bankruptcy of the principal. (2)
Upon the death of the principal, the agency contract terminates if the mandate was entered into essentially with regard to the individual who acted as principal (Art. 338a, para. 2).
Art. 418t (1)
Unless otherwise agreed upon or customary, the agent has a claim for commissions only for subsequent orders received prior to the termination of the agency relationship, and made by customer who was solicited (Art. 418g) by the agent during the period of the agency relationship. (2)
All claims of the agent for commissions or compensation become due with the termination of the agency relationship. (3)
For business transactions which are to be completed in whole or in part only after termination of the agency relationship, parties may agree in writing (Arts. 12-15) on a later due date for the commission.
Art. 418u (1)
If the agent, through his activity, has substantially increased the principal?s clientele, and if, even after termination of the agency relationship, the principal of his successor in title benefits substantially from the business relations with the acquired clientele, the agents or his heirs have an inalienable right to an adequate compensation to the extent that such compensation is not inequitable. (2)
This claim shall not exceed the net earnings for one year derived from this contractual relationship, computed on the average of the last five years, or if the relationship has not existed for so long, then on the average of the total of such period. (3)
No claim exists if the agency relationship was terminated for a reason for which the agent was responsible.
On the date of termination of the agency relationship, each contracting party shall make restitution to the other party for everything it has received during the contractual period from the other party of from third parties on account of the other party. Unaffected thereby are the rights of retention of the contracting parties (Art. 418o).