The commercial agent contract: a fundamental feature of the relationship between the principal and the commercial agent
FOUSSAT AVOCATS therefore advises and assists its clients throughout the performance of their commercial agency contracts.
- Drawing up commercial agency and sub-agency contracts,
- Advising on these contracts (clauses relating to commissions, post-contractual non-competition clauses, resale rights, applicable law, etc.),
- Competition between contracts
- Evaluating these contracts,
- Handling the termination of a commercial agency contract (serious misconduct of the commercial agent, exceptional circumstances, aggravating circumstances, etc.)
With offices not only in France and Belgium, but also in other European countries – thanks to our network of foreign partners – we assist our clients on every aspect of their international commercial agency contracts, with regard to:
- Applicable law
- Specific jurisdictional requirements
- Financial assessment of legal claims and analysis of the claim’s foundation.
A commercial agent contract can be verbal or written
If the contract is verbal
If the commercial agent contract is verbal, i.e. results from an agreement between the parties which has not been formalized by means of a written contract signed by both parties, the agreement between the commercial agent and the principal is equally valid. When the time comes, it will simply be more difficult to prove the content of the agreement in question, in particular with regard to the market sector entrusted to the commercial agent, whether s/he has been granted exclusivity for the sector or the category of clientele entrusted to him/her, etc. Exchanges of letters, emails on these questions, commission statements drawn up by the principal and commission invoices sent by the commercial agent to the principal and paid by the latter may therefore be very useful in proving the terms of the agreement between the parties.
For issues that have not resulted in an agreement between the parties, the provisions of Articles L 134-1 et seq. of the French Commercial Code of Law will apply.
This will be the case with regard to the right of the commercial agent to a commission fee (for direct or indirect sales, etc.), the period of notice should the commercial agent’s contract be terminated, the resale right of the commercial agent, etc. In addition, in the event of an international commercial agent contract, that is to say between a commercial agent located in one country and a principal located in another, the questions concerning the applicable law and the competent courts will be settled by the rules laid down by international conventions and rules of private international law.
If the contract is written
If a written contract is to be signed between the parties, then the parties must first of all think about the clauses they wish to insert into the contract.
This is because the status of commercial agents as defined in Articles L 134-1 et seq. of the French Commercial Code of Law includes provisions concerning public policy which cannot be waived, and others, on the contrary, which the parties may waive by mutual agreement.
Therefore, the use of a notional template commercial agent contract is an error insofar as this amounts to placing standard clauses on the relationship to be entered into between the commercial agent and the principal, when a contract with tailor-made clauses is possible. It can also have serious consequences for both parties, in that they may not fully appreciate the consequences of the clauses contained in the template contract in question.
If, on the contrary, the parties decide to draft their own commercial agent contract, in this case, care should be taken not to include clauses contrary to the provisions of Articles L 134-1 et seq. of the French Commercial Code of Law which cannot be waived (which is not the case with all the provisions governing the status of a commercial agent). Failing same, the clauses would be null and void.
Ultimately, while the status of commercial agents as defined in Articles L 134-1 et seq. of the French Commercial Code of Law is relatively prescriptive, it nevertheless allows the parties a certain degree of editorial freedom in finalising the contract, subject to compliance with the legal provisions concerning public policy.
FOUSSAT AVOCATS: our expertise in commercial agency law at your service
As specialists for more than twenty years in commercial agency law and therefore with long-standing experience in the issues related to commercial agent contracts as well as to the compensation of commercial agents, FOUSSAT AVOCATS advises and assists its clients throughout the life of their commercial agent contracts, including in the case of international contracts, whether with regard to their conclusion, fulfilment or termination, and therefore in particular with regard to issues concerning the commercial agent’s right to compensation.
We are therefore at your disposal for any additional information you may require.