What are the main points of a mercantile commission?

 

commission contract lawyer

By mercantile commission, a person is obliged to render some service or other custom (art. 1709 C.Civil).

When we sign a mercantile commission, we must consider the following points.

For the commission contract deemed merchant, intended taking an act or operation of business, it is sufficient that one of the two involved, either dealer: the principal or the agent (art. 244 of C. Trade). This is important: Si el commission contract mandate is civil, considered free unless otherwise agreed (art. 1711 C.Civil). However, the corporation commission is rewarded unless otherwise agreed (art. 277 C.Com).

Sometimes controversy arises whether the contrato are trading commission of the Agency. The importance is that in the second case the Agency Agreement Act applies. To distinguish, criterion is the continuity: The agency contract is continued and has stability over time. The request is timely commission contract.

Regarding the regulation of Commission Contract, must be taken into account according to the material in question, la any existing special rules for banking, insurance, market and other.

As a general regulatory provisions apply Articles 244 a 280 of C. With. In matters not provided for in the contract or commercial law, the general rules of civil mandate contained in Articles shall apply 1709 a 1739 the C.Civil.

The commission contract is consensual and does not need it to be written to be valid. It is understood that the commission has tacitly accepted the committee if management executes some custom performance that made him the principal (art. 249 C.Com).

The contract must be executed in good faith (art. 57 C.Com) and responsibilities and main duties are as follows (unless otherwise agreed):

By the principal:

  • Pay commission (art. 277 C.Com).
  • Pay Rates (art. 278 C.Com).
  • Right to revoke the commission at any time, will be bound only by the practiced steps before communicating the revocation (art. 279 C.Com).

By the commission:

  • Liable for damages that are caused by not running the command (art. 252 C.Com).
  • If agreed to provision funds, you can not start the task while not entering (art. 250 C.Com).
  • Goods held by the commission are especially liable to pay commission (art. 276 C.Com).
  • Yield economic accounts (art. 257 and 263 C.Com).
  • Reply from the custody of the goods received (art. 265 and 266 C.Com).
  • Prohibition proceeding against an express provision of the principal, divert funds for other purposes, delay in collection or buy a more expensive price than market (Arts. 256, 264, 273 and 258 C.Com).
  • Obligation to report news affecting trading (art. 260 C.Com)
  • Ban delegate unless otherwise agreed (art. 261 C.Com).
  • Prohibition of counterpart to their advantage of what the principal wants to buy or sell (art. 267 C.Com).
  • Prohibition of confusion of goods of different owners (art. 268 C.Com).
  • Prohibition of selling on credit or installments without permission from the principal (art. 270 C.Com).
  • You can ensure recovery, if you have a committee called "guarantee" (art. 272 C.Com).

Last, I left for the final two obligations very important and very current commission. If refieren to the issues:

1.- On discretionary portfolio management apply in addition to the regulation of the SMA, rules concerning mercantile commission.

2.- In the complex as preferred claims for products or subordinate, sometimes the banks argue that no advice but was a mere execution that fits in the mercantile commission.

Well, the last two are obligations of the corporation commission;

a) the commission in the performance of his duties is to hold the instructions received from the principal is held liable to him (art. 254 C.Com). This implies, counterclockwise, that if the commission is not subject to instructions received, will be liable for damages caused: If the client is conservative and risk products placed him, the commission shall be responsible.

b) Obligation to defend the interests of the client, looking after the business as if it were itself (art. 255 C.Com) and acting under the laws and regulations concerning the negotiation has to be confident (art. 259 C.Com): If the bank has violated the Securities Exchange Act, will be liable for damages.

So if the bank claims that it was only a commission contract mandate, you may be "throwing stones on your own roof".

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