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SM ISO690:2012 GRIBINCEA, Lilia. Contractul internaţional de agenţie. In: Revista Moldovenească de Drept Internaţional şi Relaţii Internaţionale, 2012, nr. 1, pp. 31-43. ISSN 1857-1999. |
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Revista Moldovenească de Drept Internaţional şi Relaţii Internaţionale | ||||||
Numărul 1 / 2012 / ISSN 1857-1999 /ISSNe 2345-1963 | ||||||
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Pag. 31-43 | ||||||
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Concerning the Civil Code of the Republic of Moldova, the trade/sales agent is the natural person - independent entrepreneur, who was entrusted permanent warrants at trade contract conclusion or agency, with goods, rights and services in the name and on the account of another enterprise (principal).
According to this Code the person who:
a) being an employee of the principal has the competence to conclude obligatory contracts for the principal;
b) being a partner, he has the right to conclude mandatory contracts for his partners;
c) is the administrator of the reorganization or the abolition in the process of insolvency;
d) activates at the commodity exchange.
Concerning the UNIDROIT Principles of International Commercial Contracts 2010, the principal's grant of authority to an agent may be express or implied.The agent has authority to perform all acts necessary in the circumstances to achieve the purposes for which the authority was granted.
Where an agent acts within the scope of its authority and the third party knew or ought to have known that the agent was acting as an agent, the acts of the agent shall directly affect the legal relations between the principal and the third party and no legal relation is created between the agent and the third party. However, the acts of the agent shall affect only the relations between the agent and the third party, where the agent with the consent of the principal undertakes to become the party to the contract.
Where an agent acts within the scope of its authority and the third party neither knew nor ought to have known that the agent was acting as an agent, the acts of the agent shall affect only the relations between the agent and the third party. However, where such an agent, when contracting with the third party on behalf of a business, represents itself to be the owner of that business, the third party, upon discovery of the real owner of the business, may exercise also against the latter the rights it has against the agent.
Where an agent acts without authority or exceeds its authority, its acts do not affect the legal relations between the principal and the third party. However, where the principal causes the third party reasonably to believe that the agent has authority to act on behalf of the principal and that the agent is acting within the scope of that authority, the principal may not invoke against the third party the lack of authority of the agent.
An agent that acts without authority or exceeds its authority is, failing ratification by the principal, liable for damages that will place the third party in the same position as if the agent had acted with authority and not exceeded its authority. However, the agent is not liable if the third party knew or ought to have known that the agent had no authority or was exceeding its authority.
The trade agent is obliged to represent honestly the interests of the principal.
The principal is obliged to respect the principle of good-will/faith in relations with the trade agent. Particularly, the principal is obliged to put at the trade’s agent disposal all the necessary information for the execution of the agency contract, to notify the trade agent in reasonable terms if it is expected that the volume of the commercial transactions will be considerably lower then the agent would normally suppose/assume, as well as about the acceptance, refusal or the non-execution of a commercial contract, proposed by the agent. If the sum of the remuneration was not stipulated, it is considered that was agreed upon an ordinary remuneration in this domain of activity. In case of impossibility of agreement upon an ordinary remuneration, the trade agent has the right to a reasonable remuneration for the service performed to the principal, taking into account the circumstances in matter and the principle of equality.
The remuneration can be entirely or partially paid in the form of commission remuneration, meaning remuneration that varies in dependence on the value of the legal trade acts.
The trade agent has the right to commission remuneration for the legal acts concluded during the period of the validity of the agency contract, if and to the extend that:
the legal act was concluded because of the actions of the respective trade agent;
the legal act was concluded with a third party, that previously had become the client of the principal as the result of a similar transaction, due to the actions of the trade agent.
The trade agent will have the right to commission remuneration, as well, for the legal acts, concluded during the validity of the agency contracts, in case that the agent has the exclusive right, licensed by the principal according to the agency contract, to lead negotiations or to conclude contracts in the name of the principal, on a certain territory or for a certain group of clients, and if a contract was concluded with a client from the territory or from that certain group. |
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