Law (of France) relating the relationship between commercial agent and principal
Закон Франции об отношениях между коммерческим агентом и принципалом
(Law № 1-593 of June 25th 1991, J.O. June 27th 1991 p 8271)
Если в качестве применимого к агентскому контракту права избрано право Франции, при разработке контракта и согласовании его условий необходимо учитывать положения Закона об отношениях между коммерческим агентом и принципалом
The "Assemblee Nationale" (French National Assembly) and the "Senat" (French Senate) have adopted,
The "President de la Republique" (French President) promulgates the following law:
The commercial agent is a professional proxy who acts as a self -employed intermediary without being bound with a work contract, permanently in charge of negotiating and possibly concluding, sale, purchase, rent or supply of services, on behalf and in the name of producers, industrials, tradesmen, or other commercial agent.
He can be an individual or a company, registered or not.
The present law shall not apply to agent who operates in the field of economic activities governed by specific legislative provisions with regard to his mission.
Each party shall be entitled to receive from the other, on request, a signed written document setting out the terms of the agency contract including any terms subsequently agreed.
The commercial agent can accept other agency contracts without prior authorisation of the principal.
However, the commercial agent shall not conclude with a company or person competing with the principal, except prior agreement of the latter.
Agency contracts are concluded in both interest of the parties.
In carrying out their obligations, the parties must act dutifully, in good faith, and with a mutual information duty.
The commercial agent must perform his contract as a good professional.
The principal must provide the commercial agent all the necessary means to carry out his contract.
Any part of the remuneration, which varies with the number of value of business transactions shall be deemed to be commission within the meaning of this law.
Articles 6 to 9 shall apply when the agent is remunerated wholly or in part by commission.
In the absence of any agreement on this matter between the parties, the commercial agent shall be entitled to the remuneration that commercial agent appointed for the goods or the services forming the subject of his agency contract are customarily allowed in the place where he carries on his activities.
If there is no such customary practise, a commercial agent shall be entitled to reasonable remuneration taking into account all the aspects of the transaction.
A commercial agent shall be entitled to commission, defined in article 5, on commercial transaction concluded during the period covered by the agency contract:
Where the transaction has been concluded as a result of his action.
Where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind.
Where he is entrusted with a specific geographical area or group of customers.
The commercial agent shall be entitled also to commission for all the transactions concluded during the period covered by the agency contract with a customer belonging to that area or group.
A commercial agent shall be entitled to commission on commercial transactions concluded after the agency contract has terminated.
If the transaction is mainly attributable to the commercial agent?s effort, during the period covered by the agency contract, and if the transaction was entered into within a reasonable period after that contract terminated, or in accordance with the conditions mentioned in the previous article, the order of the third party reached the principal or the commercial agent before the agency contract terminated.
A commercial agent shall not be entitled to the commission referred to in article 6 if that commission is due, pursuant to article 7, to the previous commercial agent unless it is equitable because of the circumstances for the commission to be shared between the commercial agents.
The commission shall become due as soon as principal has executed the transaction or should have executed it, according to his agreement with the third party or also as soon as the third party has executed the transaction.
The transaction shall become due at the latest when the third party has executed his part of transaction or should have done it if the principal had executed his part of transaction as he should have.
The commission shall be paid not later than on the last day of the month following the quarter in which it became due.
The right to commission can be extinguished only if it is established that the contract between the third party and the principal will not be executed, and:
That face is due to a reason for which the principal is not to blame.
Any commission which the commercial agent has already received shall be refunded if the right to it is extinguished.
An agency contract for a fixed period which continues to be performed by both parties after that period has expired shall be deemed to be converted into an agency contract for an indefinite period.
Where an agency contract is concluded for an indefinite period either party may terminate it by notice.
The provisions of this article shall apply to an agency contract for a fixed period where it is converted into an agency contract for an indefinite period, subject to the provision that the earlier fixed period must be taken into account in the calculation of the period of notice.
The period of notice shall be one month for the first year, two months for the second year commenced, and three months for the third year commenced and subsequent years.
Unless, otherwise agreed by the parties, the end of the period of notice must coincide with the end of a calendar month.
The parties may not agree on shorter periods of notice.
If the parties agree on longer period, the period of notice to be observed by the principal must not be shorter than that to be observed by the commercial agent.
This provisions shall not apply when the termination of the contract is provided because of a serious professional misdemeanour of one party or when exceptional circumstances arise.
The commercial agent shall be entitled compensation for the damage he suffers as a result of the termination of his relation with the principal.
The commercial agent shall lose entitlement to the indemnity if within one year following termination of the contract he has not notified the principal that he intends pursuing his entitlement.
Heirs of the commercial agent have also entitlement to the right to damage where the agency contract is terminated as a result of the commercial agent?s death.
The indemnity or compensation referred to the previous article shall not be payable:
Where the principal has terminated the agency contract because of a serious professional misdemeanour attributable to the commercial agent which would justify immediate termination of the agency contract.
Where the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities.
Where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.
The contract may include a restraint of trade clause after the termination of the agency contract.
This clause must be concluded in writing and relates to the geographical area or the group of customers entrusted to the commercial agent also the kind of goods and services covered by his agency under the terms of the contract.
A restraint of trade clause shall be valid for not more than two years after the termination of the agency contract.
Where the activity of the commercial agent is performed according to a main contract having an another purpose, the parties may agree that the provisions of the present law shall not apply to the parties performing the commercial agent?s activity.
This waiver is null and void if the main and relevant activity performed through the conduct of the contract is in fact a commercial agent?s activity.
Is deemed, null and void any clause or convention contrary to provisions of articles 2, 4, 11 third and fourth paragraph and 15, or any clause restraining the provisions in favour of the commercial agent included in articles 9 second paragraph, 10 first paragraph, 12, 13 and 14 third paragraph.
Implementation of the present law will be set by Decree of the "Conseil dEtat" (French Council of State) as it is necessary.
The provisions of the present law shall apply to contracts concluded after its entry in force and to all contracts in operation by 1 January 1994 at the latest.
The present law will be performed as a State Law.
Done at Paris, 25 June 1991.
(1): This translation is not certified. Readers are strongly recommended to refer to the original French text in case of professional use.
The translator shall not be liable for any damage arising out from or in connection with the content of this translation.
(2) and (3): Articles 17 and 18 are not translated as the content of these articles do not concern our purpose.