The Mandate And The Agency Contract

The creation of the Anglo-Saxon system of law, the agency contract received its own rules at a European Community level by the adoption of the Council of Europe Directive no. 86/653 of 1986, regarding the harmonization of the member states legislations concerning the independent commercial agents. This directive was intended to eliminate the existing regulatory differences in the laws of the member states relating to commercial representation, which affected competition and the smooth running of trade relations within the Community. “The exchange of goods must take place under conditions that are similar to those of the single market, and this requires the resemblance of the legal systems of the member states to such an extent as to satisfy the proper functioning of the common market.†(the Council Directive of the 18th of December 1986). In the Romanian law system, the commercial agents, as independent auxiliaries of traders, were submitted to the regulations of the Commercial Code, namely art. 402. Afterwards, the principles set by the named European Directive were imported to our legal system as well; this type of contract was enshrined as a sui generis agreement by the Law no. 509/2002 regarding the permanent commercial agents. This law was repealed by the entry into force of Law no. 71/2011 regarding the implementation of Law no. 287/2009 on the Civil Code, which, achieving a unitary regulation of private law relations, codifies this type of contract in art. 2072-2095.This category of independent auxiliaries, the agents, has emerged from the needs imposed by the activity of the trader, who wants to expand his activity to a more or less distant market, without increasing the costs and risks of setting up branches abroad. Through this legal mechanism, he will be able to use an individual or a legal person in order to achieve the stated purpose, granting them a remuneration for all contracts concluded by the principal as a result of their intervention. This person works as a self-employed professional, placing, in a certain area, the products of one or several principals. In market economy countries, real agent companies have been set up, in the legal form of joint stock companies, whose object of activity is the intermediation of business between companies in the country of origin and companies in other countries. In the Common Law system, commercial agents are independent intermediaries of different categories (factor, mercantile agent, broker), which are specialized in dealing with commercial operations in a certain branch of activity, but they are subjects to the same legal regime. Therefore, the agency contract is a legal mechanism characterized by increased flexibility, which better meets the current requirements of speculative activities and which, as has been rightly said in the doctrine (Prescure, 2003: 52), will gradually replace the old commission agreement. Thus, producers of goods for export frequently resort to the contract of agency, that they consider to be a simple yet efficient means of organizing the distribution of their goods outside their state of origin.