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Auxiliaries And Agents

TITLE II. AUXILIARIES AND AGENTS

Chapter 1. Commercial Employee

Art. 28. – Definition.

1.    Commercial employee are persons who are bound to a trader by a contract of employment and who assist the trader by doing work of a non-manual nature as a salesman, secretary, accountant, guardian, inspector or director.
2.    Commercial employees are not traders.

Art. 29. – Civil Code applicable

Without prejudice to the provisions of this Code, the provisions of the Civil Code relating to contracts of employment shall apply to commercial Employees.

Art. 30. – Prohibition from carrying on private trade.

1.    A commercial employee may not carry on, on his own behalf or on behalf of a third party, a trade similar, to the trade carried on by his employer. Where an employee infringes this prohibition, his employer may claim damages and may cancel or refuse to renew the contract of employment in accordance with Art. 2591 of the Civil Code.
2.    A contract of employment may only contain a prohibition from carrying on private trade upon the expiry of the contract of employment on the conditions specified in Art 2589, 2590 and 2592 of the Civil Code.

Art. 31. – Agents.

1.    Commercial employees may act as agents by express to tacit agreement.
2.    The revocation of the power of agency shall not result in the cancellation of the contract of employment.

Art. 32. – Powers of Employee in charge of sales.

1.    The employee in charge of the sales in a store shall be deemed to have a power of agency for the purpose of selling or receiving goods which come within the normal business activities of stores of such nature.
2.    He may demand that goods sold by him be paid to him, unless payment is to be made to a special account.
3.    The employee may not demand payment outside the store unless so expressly authorised or unless he produces a receipt signed by the trader.

Chapter 2. Managers

Art. 33. – Definition

1.    A manager is a person who has been authorised, expressly or tacitly, to carry out acts of management and to sign in the name of the trader.
2.    A manager is not a trader.

Art. 34. – Publicity.

1.    Where a manager has been appointed, the trader shall cause an entry to be made in the commercial register.
2.    The manager shall have power to act by virtue of his appointment, not-withstanding that the provisions of sub-art. (1) have not been complied with.

Art. 35. – Powers of Manager.

1.    In his relations with third parties, the manager shall be deemed to have full power to carry out all acts of management connected with the exercise of the trade, including the power to sign a negotiable instrument.
2.    Unless expressly authorised to do so, he may not sell or pledge immovable property, nor may he sell, hire or pledge a business.

Art. 36. – Restriction on powers.

1.    The powers of a manger may be limited to the management of a branch. Such a restriction shall not affect third parties in accordance with Art. 121 of this Code unless notice of such restriction has been entered in the commercial register.
2.    Any other restriction shall not affect third parties.

Chapter 3. Commercial Travelers and Representatives

Art. 37. – Commercial travelers.

1.    A commercial traveler is a person, domiciled at the place where the head office of the business is situate and bound to a trader by a contract of employment, who is entrusted by the trader with visiting clients and offering to them goods or services in the name and on behalf of the trader.
2.    Unless otherwise agreed, contracts entered into by a commercial traveler shall be of no effect unless confirmed by trader.
3.    Commercial travellers are not traders.

Art. 38. – Commercial representatives.

1.    A commercial representative is a person, not domiciled at the place where the head office of the business is situate and bound to a trader by a contract of employment, who is entrusted by the trader with visiting clients in a specified area and offering to them goods or services in the name and on behalf of the trader.
2.    Unless otherwise agreed, contracts entered into by a commercial representative shall become effective without confirmation by the trader.
3.    Commercial representatives are not traders.

Art. 39. – Private Business.

1.    Unless otherwise provided in the contract of employment, commercial travellers and representatives may not carry on private business. Where they carry on private business, they shall lose their compensation as provided in Art. 42 and 43.
2.    The provisions of Art. 30 (2) shall apply where commercial travellers and representatives have been authorised to carry on private business.

Art. 40. – Acting on behalf of other traders.

1.    Unless otherwise agreed, commercial travellers and representative may not act on behalf of traders other than the trader to whom they are bound. Where they act on behalf of other traders, they shall lose their compensation as provided in Art. 42 and 43.
2.    In no case may they act on behalf of a trader selling goods or offering services similar to the goods sold or the services offered by the trader to whom they are bound.

Art. 41. – Remuneration.

1.    Commercial travellers and representatives shall be paid by salary or on commission or both.
2.    The remuneration shall be fixed by the contract of employment or, where not fixed, by custom.

Art. 42. – Compensation in case of termination of contract.

Where the trader terminates the contract without good cause, commercial travellers and representatives who are bound by a contract entered into for an undefined period of time shall be entitled to fair compensation fixed in accordance with Art. 2583 of the Civil Code.

Art. 43. – Compensation on account of clients introduced.

    Where a contract entered into for an undefined period of time is terminated by the trader or where a contract entered into for a specified period of time is not renewed by the trader, no fault being attributable to the commercial traveller or representative, the commercial traveller or representative shall be entitled to     compensation equal to the profit derived from the customers introduced or goodwill created or extended by him.

Chapter 4. Commercial Agent

Art. 44. – Definition.

1.    A commercial agent is a person or business organisation, not bound to a trader by a contract of employment and carrying out independent activities, who is entrusted by a trader with representing him permanently in a specified area and dealing or making agreements in the name and on behalf of the trader.
2.    Unless otherwise provided in the agency agreement, contracts entered into by a commercial agent shall become effective without confirmation by the trader.
3.    A commercial agent normally acts as agent and may act as broker. He is a trader.

Art. 45. – Commercial agent exclusive agent.

    Unless otherwise provided in the agency agreement, a commercial agent shall be the exclusive agent of the principal in the area specified in the agreement.

Art. 46. – Duties of commercial agent.

1.    A commercial agent shall safeguard the principal’s interests with the care due by a good trader.
2.    He shall:
a.    Carry out all instructions of the principal;
b.    Inform the principal of all contracts negotiated or entered into by him;
c.    Send to the principal periodical reports on his activities and all such information as may be required on the state of affairs within the area where he acts.
3.    Where the agency agreement comes to an end, a commercial agent may not take advantage of or disclose trade secrets revealed to him by the principal or of which he learned in the course of his duties as an agent.

Art. 47. – Prohibition from carrying on private trade.

1.    A commercial agent may carry on any private trade which is not similar to the trade carried on by the principal. The agency agreement may be cancelled and damages may be due where the agent carries on trade similar to the trade carried on by the principal.
2.    Unless otherwise provided in the agency agreement, a commercial agent may not act in the area specified in the agreement on behalf of traders other than the principal.
3.    In no case may a commercial agent act, in the area specified in the agency agreement, on behalf of traders who carry on a trade similar to the trade carried on by the principal. The agency agreement may be cancelled and damages may be due where the agent disregards this prohibition.

Art. 48. – Duties of principal.

    The principal shall, to the best of his ability, enable his agent to carry out successfully his duties under the agency agreement, in particular by making all necessary information and samples available to him.

Art. 49. – Repayment of expense.

    Unless otherwise agreed, current costs and expenses of the agency shall be borne by the commercial agent and are not subject to repayment by the principal. The agent shall only be entitled to the repayment of expenses occasioned by dealings made on behalf of the principal and of such special expenses as were made by him on the order of the principal.

Art. 50. – Remuneration.

1.    A commercial agent shall receive remuneration for all dealings negotiated or made by him. Unless otherwise provided, he shall receive remuneration for all dealings made, in the area where he acts, either by the principal himself or by another agent of the principal.
2.    A commercial agent shall receive remuneration even where dealings made by him are not carried out by the principal.
3.    The remuneration shall be fixed in the agency agreement or, where not fixed, by custom.

Art. 51. – Agent personally to carry out his duties.

    A commercial agent may not assign the agency agreement and may not substitute a third party for himself, as an agency agreement is made on the basis of the personal qualifications of the agent.

Art. 52. – Termination of agency agreement.

1.    An agency agreement shall terminate:

a.    Where the period of time for which it was entered into express;
b.    Where the agent, being a person dies, becomes incapable or is declared bankrupt;
c.    Where the business organisation acting as agent is wound-up.

2.    Either party to an agency agreement made for an undefined period of time may terminate it on notice. Notice need not be given where there is good cause for termination.
3.    The period of notice shall be fixed in the agency agreement or, where not fixed, by custom. It shall not be less than one month during the first year of service and not less than two months after the first year.

Art. 53. – Compensation due in case of termination.

    Where the principal terminates without good cause an agency agreement entered into for an undefined period of time, the agent shall receive fair compensation     which shall be fixed having regard in particular to the time for which he acted on behalf of the principal and to the customers introduced or goodwill created or extended by him.

Art. 54. – Uncompleted business upon termination.

1.    Whenever an agency agreement terminates, the agent or his heirs or the business organisation having acted as agent shall receive remuneration for all contracts negotiated or entered into prior to the termination of the agreement.
2.    Upon termination of the agreement, all remunerations and expenses due shall be paid forthwith by the principal.

Art. 55. – Prohibition from carrying on similar private trade on termination of the agreement.

1.    The agency agreement may provide that, upon termination of the agreement, the commercial agent shall not carry on the same trade as the principal or act as commercial agent or representative for a trader carrying on the same trade as the principal.
2.    Notwithstanding any provision to the contrary, any such prohibition shall not be effective for more than five years.

Chapter 5. Commercial Brokers

Art. 56. – Definition.
1.    A commercial broker is a person or business organisation who, independently, professionally and for gain, brings parties together for the purpose of their entering into an agreement such as a contract of sale, lease, insurance or carriage.
2.    A commercial broker is a trader, regardless of the parties he brings together and of the nature and object of the contract for the completion of which he acts as an intermediary.

Art. 57. – Notice to parties.

1.    Unless customary or otherwise agreed, a commercial broker shall, where the parties have agreed to enter into a contract, inform both parties of the terms of the proposed contract.
2.    Unless customary or otherwise agreed, the proposed contract shall not become effective unless it is confirmed by both parties.

Art. 58. – Liability of broker.

    A commercial broker shall be liable for any damage he causes to either     party.

Art. 59. – Remuneration.

1.    A commercial broker shall receive remuneration when the contract for the completion of which he acted as an intermediary is entered into, whether such contract is performed or not.
2.    Unless customary or otherwise agreed, the remuneration shall be paid only by the party having required the services of the broker.
3.    The remuneration shall be fixed in the agreement or, where not fixed, by custom. The court may reduce the agreed remuneration where it appears excessive and disproportionate to the services rendered by the broker.

Chapter 6. Commission Agents

Art. 60. – Definition.

1.    A commission agent is a person or business organisation who, independently, professionally and for gain, undertakes to buy or to sell in his name, but on behalf of the principal, goods, movables or any other thing of a similar nature, or to enter in his name but on behalf of the principal into a contract of carriage of goods.
2.    A commission agent is a trader, regardless of the parties and of the nature and object of the contract.

Art. 61. – Civil Code applicable.

    The provisions of Art. 2234-2252 of the Civil Code shall apply to contracts of commission.

Art. 62. – Stock brokers.

1.    Stock brokers are commission agents.
2.    Unless otherwise provided by law, they shall be subject to the provisions relating to contracts of commission.