EMIRATI ARABI UNITI DISCIPLINA RECESSO AGENZIA

EMIRATI ARABI UNITI, RECESSO DAL CONTRATTO DI AGENZIA, DISCIPLINA DEL TRANSACTION CODE

La disciplina del recesso è contenuta nella L. n. 18 del 1993 (Commercial Transactions Code, che disciplina contratti di agenzia e di concessione).

ARTICLE (214)

Either party to the commercial agency contract may terminate it at any time, and no compensation is due except if the termination occurs without prior notice or at an inconvenient time. Where the contract has a fixed term, it may only be terminated for a serious and acceptable reason, otherwise compensation will be required.

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STUDIO

MISURACA & Associati/Associates

Studio Legale

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Il documento manca di molte parti, lo studio legale SMAF invia su gentile richiesta una completa copia a titolo di prestazione professionale a pagamento ex artt.17 ss. Cod. Deont. Forense / The document has missing parts; please, consider SMAF law firm allowed to send a you a payable copy according to Italian Forensic Deontology Code.

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PART SIX

COMMERCIAL AGENCY

CHAPTER ONE

GENERAL PROVISIONS

ARTICLE (197)

An agency shall be commercial when it relates to commercial activities.

ARTICLE (198)

1. A commercial agency shall be deemed subject to remuneration, save where otherwise agreed upon.

2. Where the agent's fee has not been fixed in the agreement or has not been stated in the law, it shall be determined according to customs, and in the absence of custom the Court shall estimate it.

ARTICLE (199)

The fee shall accrue to the agent by the mere execution of the transaction assigned to him, or if he proves that it was not executed due to reasons attributed to the principal. In all other cases, the agent shall only be entitled to a remuneration for his efforts and expenses in accordance with customs -if any- or pursuant to the Court's estimation.

ARTICLE (200)

The commercial agency, even though it has a general power of attorney, shall apply only to commercial business, save where otherwise agreed upon.

ARTICLE (201)

Where the commercial agency is granted for a specific commercial transaction, the agent may carry out all the actions required to execute such transaction without the need to obtain an authorization from the principal.

ARTICLE (202)

1. The agent shall abide by the compulsory and express instructions of the principal , and if he violates them without an acceptable excuse, the agent may refuse the transaction. However, in case of advisory instructions issued by the principal, the agent shall have the exclusive authority to act within the scope of the general objective set by the principal for the agent.

2. Where no express instructions are issued by the principal concerning the transaction, the agent shall delay its execution and request instructions from the principal, unless the delay in implementing the transaction may cause damage to the principal or unless the agent is authorized to act without instructions from the principal.

ARTICLE (203)

Where the agent implements the tasks assigned to him under conditions that are more beneficial than those stipulated in the agency, he may not acquire the difference which in such a case belongs to the principal, save where otherwise agreed upon.

ARTICLE (204)

Where the goods or items held by the agent for the account of the principal are highly perishable or are subject to a drop in value and no instructions were received from the principal in this respect within a reasonable time, the agent may petition the Court requesting a prompt authorization to sell them and determine the method of sale.

ARTICLE (205)

The agent may refrain from performing the work entrusted to him where performance requires exorbitant expenses which have not been paid by the principal, unless otherwise agreed upon between the two parties or unless there previous dealing between them which is to the contrary, and provided that the agent such expenses.

ARTICLE (206)

Where the agent refuses to execute the transaction entrusted to him, he has to forthwith notify the principal thereof. In such a case, the agent shall safekeep the goods and other things which he keeps for the principal until he receives instructions in this respect. If the instructions are not received within a reasonable time, the agent may request the Court to authorize him to deposit the goods and other things with a trustee to be appointed by the Court.

ARTICLE (207)

The agent is liable for such damages and losses as are suffered by the goods and other items which he keeps for the principal, save where such damages or losses result from a foreign cause beyond the agent's control or from a defect that is inherent to the goods or items.

ARTICLE (208)

The agent shall not be bound to insure the articles which he keeps for the principal unless the latter so requires, or where insurance is obligatory according to the law or the custom, or if the nature of the article so dictates.

ARTICLE (209)

1. The agent may not constitute himself as a second party to the transaction assigned to him for execution except in the following cases:

a. If the principal authorizes him to do so.

b. If the principal's instructions concerning the transaction are express and specific, provided the agent has implemented them accurately.

c. If the transaction is related to a commodity which has a fixed price in the market and the agent has bought it for himself or has sold it to the principal from his own money at such price.

d. The agent shall not be entitled to any fee against the agency in the foregoing cases.

ARTICLE (210)

A third party dealing with the agent may request the right to peruse the agency contract, the correspondence and other documents establishing the agent's authority. Any restrictions to the agent's authority may not be opposed to a third party, except if it were established that such party had knowledge of such restrictions at the time of contracting.

ARTICLE (211)

The agent shall inform the principal of the transactions he concludes for the principal's account.

ARTICLE (212)

The agent shall submit to the principal on the agreed date or on the date fixed by the custom or by their previous dealing an account of the business carried out for his account. Said account shall be in conformity with the facts; if false particulars have been premeditadely included therein, the principal may reject the relevant transactions, and shall further be entitled to claim damages. The agent shall not receive any fee for the said transactions.

ARTICLE (213)

The agent may retain possession of the goods and other articles dispatched to, deposited with or delivered to him, as a security for the fees and expenses due to him from the principal.

ARTICLE (214)

ARTICLE (215)

Where the principal does not have a known domicile in the State, the domicile of his agent shall be deemed to be his domicile; he may be litigated and official papers served on him, in regard to the business conducted by the agent on his behalf.

ARTICLE (216)

Anything related to the organization of the commercial agency business shall be governed by the ad hoc laws.

CHAPTER TWO

CERTAIN TYPES OF COMMERCIAL PROXY (POWER OF ATTORNEY)

I - CONTRACTS PROXY

ARTICLE (217)

A contracts proxy is a contract pursuant to which a person undertakes to carry on continuously against remuneration, in a specific area of activity, instigation and negotiation in order to enter into transactions for the benefit of the principal and in return of a fee. The agent's task may include the execution and implementation of transactions in the name of the principal and for his account.

ARTICLE (218)

The contracts agent shall carry out the business of his proxy and manage his commercial agency in an independent manner, and shall bear alone the expenses necessary to conduct such business.

ARTICLE (219)

Where the contract stipulates that the contracts agent is to set up showrooms or warehouses for the goods or maintenance and repair installations, the contract term may not be less than five years, except if otherwise agreed upon.

ARTICLE (220)

1. The contracts agent may not receive the principal's rights, unless the principal grants him this right, in which case the agent may not make any reduction or grant a respite without obtaining a special authorization therefor.

2. The contracts agent may receive such applications as are related to the implementation of the contracts entered in through him, as well as any complaints concerning the non-implementation of such contracts. He shall further be deemed as the representative of his principal in the cases relevant to said contracts, whether lodged by or against him in the area of activity of the agent.

ARTICLE (221)

1. The principal must pay the agreed remuneration to the agent.

2. Such remuneration may be a percentage of the transaction value, to be calculated on basis of the sale price to the customers, unless otherwise agreed upon.

ARTICLE (222)

The contracts agent shall be entitled to a remuneration for the transactions concluded or for those whose non-conclusion is due to the principal's act, unless the contract stipulates otherwise.

ARTICLE(223)

The principal shall provide the agent with all the information necessary for the implementation of the agency.

ARTICLE (224)

1. The contracts agent shall be bound to safeguard the principal's rights and he may take all the precautionary measures to that effect. He must as well provide the principal with the information pertaining to the market conditions in the area of his activity.

2. The contracts agent may not, even after termination of the contractual relationship, divulge the principal's secrets which may come to his knowledge as a result of the execution of the proxy.

ARTICLE (225)

In the event where the principal replaces the contracts agent by a new agent, this latter shall be jointly responsible with the principal for the payment of the indemnities decided by the court to the previous agent whenever it is established that the dismissal of the previous agent was a result of collusion between the principal and the new agent.

ARTICLE (226)

As an exception to the rules of jurisdiction provided for in the Civil Procedure Code, the Court within which jurisdiction lies the place of implementation of the contract, shall be competent to look into any conflicts arising from the contracts proxy contract.

ARTICLE (227)

A distribution contract whereby a trader undertakes to promote and distribute the products of an industrial or commercial establishment in a specific area on an exclusive distributorship basis, shall be considered as a contracts proxy and be governed by the provisions of Articles (220), (225) and (226) hereof.

ARTICLE (228)

In case of denial and lack of legitimate excuse, all cases arising from a contracts proxy contract may not be heard after the lapse of three years from the termination of the proxy.

II - PROXY BY COMMISSION _

ARTICLE (229)

1. A proxy by commission is a contract pursuant to which the agent undertakes to carry out in his own name a legal act for the account of the principal against a commission to be received from the principal.

2. Where the commission agent carries out the legal act in the name of the principal, he shall be subject to other general provisions of the commercial agency.

ARTICLE (230)

1. Where the commission agent sells at a lower price or buys at a higher price than that fixed by the principal, and this latter wishes to refuse the transaction, the principal must notify the agent thereof within one week from the date on which he was informed that said transaction was concluded, otherwise he shall be considered as having accepted the price.

2. The principal may not reject the transaction if the agent accepts to bear the price difference.

ARTICLE (231)

1. Where the commission agent buys for the account of the principal, goods of a type or category that is different from that requested by the principal, this latter shall not be bound to accept them.

2. Where the commission agent buys goods which are in conformity to the goods requested but in a bigger quantity, the principal shall be bound to accept only the quantity which he had requested.

ARTICLE (233)

1. Where a commission agent who is assigned to sell, grants the buyer without the permission of the principal, a respite for payment of the price or makes the price payable by installments, the principal may require the agent to pay the whole price immediately, in which case the commission agent may retain for himself the price difference and its interests -if any.

2. Nevertheless, the commission agent may grant a respite for payment of the price or makes the price payable by installments without the principal's permission, if it is the custom to do so in the area where the sale was effected, save where the principal's instructions bind the agent to sell on immediate payment basis.

ARTICLE (234)

Where the instructions of the principal bind the commission agent to sell against payment on term and this latter sells for immediate payment at a lesser price, the principal may not require him to pay the price until maturity of the term fixed by him, in which case the commission agent shall be bound to pay the price on the basis of sale on term.

ARTICLE (235)

1. A commission agent may not change the trade marks affixed on the goods received by him from the principal or for the principal's account.

2. Where the commission agent has possession of a whole bunch of goods of the same kind which were dispatched to him by different principals, he must put a label on each batch of goods that is distinctive of it.

ARTICLE (236)

1. A commission agent may disclose the name of the principal for whose account he enters into contract unless the principal requires him not to do so. The disclosure of the principal's name shall not result in a change in the nature of the proxy as long as the commission agent enters in contract in his name.

2. The commission agent must disclose to the principal the name of the third party with whom he contracts if the principal requires him to do so, and if he refrains from doing so without an acceptable excuse he may be considered as having guaranteed the implementation of the transaction.

3. In all cases, the commission agent shall be bound to establish the existence of the third party with whom he contracted if the principal requires him to do so.

ARTICLE (237)

1. A commission agent shall be directly bound to the third party with whom he entered into contract; such third party shall also be directly bound to the commission agent.

2. A third party with whom the commission agent has entered into contract may not have direct recourse against the principal, neither may this latter have direct recourse against such third party unless there is a legal provision to the contrary.

ARTICLE (238)

1. The agent shall have - in addition to his right of seizure - a right of lien over such goods and other articles which are dispatched to, deposited with or delivered to him by the principal.

2. The right of lien shall secure the agent's remuneration and any expenses and sums he pays on behalf of the principal or he lends them to him, along with their interests and other sums that may accrue to the agent on account of the proxy, irrespective whether such amounts have been paid before delivery of the goods and articles or while they were in the possession of the agent.

3. The said lien is established without regard to whether the debt has arisen from business related to the goods or articles which are still in the agent's possession or to other goods or articles which had previously been deposited with, delivered to or dispatched to the agent.

ARTICLE (239)

1. The agent shall not have any right of lien as is mentioned in the foregoing Article, unless he is in possession of goods or articles for the principal's account; and such possession shall be realized in the following cases:

a. Where the agent has effectively received the goods or articles.

b. Where the goods or articles were placed at his disposal in a public warehouse or customs.

c. Where he legally had possession of the goods before their arrival pursuant to the bill of lading or any other bill of carriage.

d. Where he has exported the goods and has retained possession thereof pursuant to a bill of lading or any other bill of carriage.

2. In case the goods or articles subject of the right of lien have been sold and delivered to the buyer, the agent's lien shall pass on to the price.

ARTICLE (240)

The agent's lien shall have priority over all other liens, except judicial expenses and sums due to the Government.

ARTICLE (241)

1. The execution proceedings adopted for a commercially mortgaged item shall apply to the execution on goods and articles held in possession of the agent.

2. However, where the agent is assigned to sell the goods or articles held in his possession, he may obtain execution thereon by selling them without having to comply with the proceedings referred to in the preceding paragraph, unless he fails to abide by the principal's express instructions issued in respect of the sale.

ARTICLE (242)

1. Where the commission agent who is assigned to sell is declared bankrupt before cashing in the price, the principal may claim payment of the price directly from the buyer.

2. Where the commission agent who is assigned to buy is declared bankrupt before he received the item bought, the principal may claim delivery of the item bought directly from the seller.

ARTICLE (243)

1. A commission agent shall not guarantee the fulfillment of his obligations by the third party with whom he contracted, unless he assumed expressly this guarantee, or if such guarantee is stipulated by law, or if it is customary in the area where he carries on his activity to do so.

2. A commission agent who is guarantor of the fulfillment by the contractee of his obligations, shall be entitled to an additional remuneration to be determined by the Court where there is no agreement or custom in this respect.

ARTICLE (244)

A commission agent may not delegate to a third party the business entrusted to him , unless he obtains the permission of the principal to do so, and if he fails to comply with this provision the person delegated shall have no right of seizure or lien except to the limit of the debt due to the original commission agent.

III - COMMERCIAL REPRESENTATION

ARTICLE (245)

The commercial representation is a contract pursuant to which the commercial representative undertakes to enter into transactions in the name and for the account of his principal, on a permanent basis and within a specific area.

ARTICLE (246)

The commercial representative shall not warrant the implementation of the transactions concluded through him, unless he had expressly agreed to such guarantee or in case the custom in the area where he carries on his activity dictates such a guarantee.

ARTICLE (247)

1. The trader shall be liable for any transactions and contracts entered into by his representative within the limits of the authority conferred to him by the trader.

2. Where the representative is delegated by several traders, they shall be jointly responsible.

3. If the representative is delegated by a company, the company shall be responsible for his action and the partners' responsibility shall depend on the type of company.

ARTICLE (248)

1. Where the limits of the authority vested in the commercial representative have not been determined, the authority shall be deemed general and comprehensive for all the transactions related to the kind of trade which the representative has been authorized to carry out.

2. The trader may not plead against a third party that the authority is limited unless he establishes that such third party was aware of such limitation.

ARTICLE (249)

The commercial representative shall carry on in the name of the trader who delegated him the commercial activities which he has been authorized to undertake; when signing he shall place next to his name in full, the full name of the trader and shall indicate his capacity as commercial representative; otherwise he shall be personally liable for his own action. Nevertheless, third parties may have direct recourse against the trader in regard to the transactions concluded by the representative in connection with the trade which he has been authorized to carry on.

ARTICLE (250)

A commercial representative may represent the trader in the lawsuits arising from the commercial transactions carried on by him.

ARTICLE (251)

The commercial representative shall be jointly liable with the trader for observing the law provisions related to unfair competition.

ARTICLE (252)

A commercial representative may not effect any commercial transaction of the kind for which he is authorized, for his own account or for the account of a third party without obtaining an express approv