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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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)
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.
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 