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Please use this identifier to cite or link to this item: http://elib.bsu.by/handle/123456789/29966
Title: Правовая природа договора коммерческого представительства
Other Titles: Legal Nature of Treaty on Commercial Representation (Elena Babkina)
Authors: Бабкина, Елена Васильевна
Keywords: ЭБ БГУ::ОБЩЕСТВЕННЫЕ НАУКИ::Государство и право. Юридические науки
Issue Date: 2000
Citation: Белорусский журнал международного права и международных отношений. — 2000. — № 2
Abstract: A definition of legal nature of treaty on commercial office is required b y theoretical and practical necessity since the content of responsibilities of each party to the treaty depends on it. It is also due to the absence of special norms, regulating the commercial offices' activities, in the legislation of certain states (e. g. the USA). A commercial office has three functions according to Belarusian practice: 1) to take on responsibility to perform certain legal acts on behalf and on account of the represented subject; 2) to take on responsibility to perform certain legal acts in their own name but on the account of the represented subject; 3) to take on responsibility to perform certain factual acts (e. g. to assist the represented subject in search for counteragents and in holding negotiations with the aim of contract conclusion. However, these contracts are concluded directly between the represented subject and the third party). In order to define the legal nature of relations of the parties from the agent contract, one should understand the legal nature of its types of applied to national law then summarize thereupon giving a single definition to all forms of these contracts. Article 861 of the Civil Code of the Republic of Belarus defines, that, according to the commission contract, one party (agent) is obliged to perform certain legal acts on behalf and on account of the other party (principal). Article 880 of the Civil Code of the Republic of Belarus gives the following definition of the commission contract: "according to the commission contract, one party (agent) is obliged to perform one or several transactions in its own name, but on the account and premium of the other party (consignor)". Since Belarusian legislation lacks special norms regulating the activities of the mediators who perform factual actions, and due to the similarity of other essential conditions of the treaty to the commission contract, common norms of contractual law and corresponding norms on the commission contract are applied to the relations with a common mediator when they do not come into collision with the essence of the abovementioned relations. In contrast to Belarusian Civil Code, Russian civil l aw has norms devoted to an agency treaty, according to which one party (agent) is obliged to perform on behalf and for a fee of the other party (principal) certain legal and other acts on its own behalf but on the account or on behalf and account of the principal (Article 1005 of the Civil Code of Russia). Taking into account the information above, international treaty on commercial representation can be considered as a bilateral, consensual and refundable treaty. It is an international trade treaty, according to which one party (agent) is obliged to perform legal and/or factual acts in the interests of the order party (principal) in either name. The legal nature of the treaty on commercial office for the EU member-states can be understood from the study of Articles 1, 2 of the 1986 EU Directive on independent trade agents: a commercial agent is a subject who is entrusted to conduct negotiations on purchase and sale for the other party named as "consignor" of conduct negotiations and conclude transactions on behalf and on account of the consignor as an independent trade mediator. Thus, the Directive treats the treaty on commercial representation as the commission contract, i. e. is grounded on direct representation that is adopted in continental Europe. The legal nature of the treaty on commercial representation in France is reflected in the decree from 23.11.1958 and the law from 25.06.1991 which implemented the regulations of the 1986 EU Directive into national law. The treaty on commercial office in French l aw is defined as bilateral, refundable and consensual existing in the form of the commission contract envisaging factual and/or legal actions performed by the agent on behalf of the principal. British approach to the representation theory has specific features: there is no division into direct and indirect representation: agents can act both on behalf of the principal and in their own name. An agency treaty in British law can be characterized as bilateral, consensual and refundable on the basis of which one party (agent) takes on responsibility to perform legal and/or factual actions on the account of the order party (principal).
Description: Раздел - "Международное право", рубрика - "Международное частное право"
URI: http://elib.bsu.by/handle/123456789/29966
Appears in Collections:Белорусский журнал международного права и международных отношений. — 2000. — № 2

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