Commission agreement as one of the types of intermediary agreements (+ template of Commission agreement for the import of advertising, information and organizational services)

One of the types of intermediary agreements, along with an agency agreement and an agency agreement, is a commission agreement.

Under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (principal), to complete one or more transactions for a fee on its own behalf, but at the expense of the principal (Article 1011 of the Civil Code of Ukraine).

Therefore, the parties to the commission agreement are the committent and the commission agent. They can be any legal or natural persons. At the same time, a third party with whom the commission agent concludes transactions in favour of the committent is not a party to the commission.

The essential terms of the commission agreement, as well as any other business agreement, in accordance with Art. 180 of the Civil Code of Ukraine, there is a subject, price and term of the contract.

At the same time, the essential terms of the commission agreement, under which the commission agent undertakes to sell or buy property, are the conditions on this property and its price (part 3 of article 1012 of the Civil Code of Ukraine).

That is, the subject of the commission agreement is the commission by the commission agent of one or more transactions on his own behalf, but at the expense and on behalf of the committent.

It should be noted, however, that in accordance with Art. 1014 of the Civil Code of Ukraine, the commission agent is obliged to make transactions on the terms most favourable for the committent, and in accordance with his instructions. If there are no such indications in the commission agreement, the commission agent is obliged to make transactions in accordance with the customs of business transactions or the usual requirements. If the commission agent made a transaction on terms more favourable than those determined by the committent, the additional benefit received belongs to the committent.

The price of the commission agreement (commission fee) is regulated in Part 1 of Art. 1013 of the Civil Code of Ukraine, according to which the committent must pay the commission agent a fee in the amount and in the manner established in the commission agreement. Also, if the commission agent vouched for the execution of the transaction by a third party, he is entitled to an additional fee. If the amount of the fee is not determined by the commission agreement, it shall be paid after the execution of the commission agreement, based on the usual prices for such services. If the commission agreement was not executed for reasons that depended on the committent, the commission agent is entitled to a commission fee on a general basis. In the event of termination or unilateral refusal of the commission agreement, the commission agent is entitled to a fee for the actions actually performed (parts 2 - 5 of article 1013 of the Civil Code of Ukraine).

In addition, the commission agent has the right to reimbursement of expenses incurred by him in connection with the performance of his obligations under the commission agreement, in particular, if he or the subcommission agent took all measures to complete the transaction, but could not complete it under circumstances that from him did not depend on (Article 1024 of the Civil Code of Ukraine).

Also, the commission agent has the right to deduct the amounts due to him under the contract from all the funds received by him for the committent, if other creditors of the committent do not have a priority over him to satisfy their claims from the funds belonging to the committent (Article 1020 of the Civil Code of Ukraine).

Term of the commission contract. The commission agreement can be concluded for a fixed period or without a specified period (part 1 of article 1012 of the Civil Code of Ukraine).

Commission contract form. As a general rule, a commission agreement is concluded in a simple written form (Article 208 of the Civil Code of Ukraine), however, the parties may voluntarily conclude such a transaction in a notarial form (Part 4 of Article 209 of the Civil Code of Ukraine).

Other terms of the commission agreement.

Commissioner's report. After the transaction is completed on behalf of the committent, the commission agent must provide the committent with a report and transfer to him everything received under the commission agreement. The principal who has objections to the report of the commission agent must notify him of this within thirty days from the date of receipt of the report. If such objections are not received, the report is considered accepted (Article 1022 of the Civil Code of Ukraine).

As you can see, the report is obligatory in the relationship between the commission agent and the committent. The form of the report and the terms for submitting the report are not regulated by law, therefore, the parties can set the terms and form of the report at their discretion. However, according to the definition of the concept of a primary accounting document (clause 2.1 of the Regulation on documentary support of records in accounting, approved by order of the Ministry of Finance of Ukraine on May 24, 1995 No. 88 and registered with the Ministry of Justice of Ukraine on June 05, 1995 under No. 168/704), which the commission agent's report is a primary document, therefore, the report must indicate the required details, in accordance with clause 2.4 of the Regulation on documentary support of entries in accounting, approved by order of the Ministry of Finance of Ukraine on 24.05.1995 No. 88 and registered with the Ministry in 1995 under No. 168/704 and Art. 9 of the Law of Ukraine "On Accounting and Financial Reporting in Ukraine".

Deviation from the instructions of the committent. The commission agent has the right to deviate from the instructions of the principal if this is required by the interests of the principal, and the commission agent could not ask the principal beforehand or did not receive a response to his request within a reasonable time. In this case, the commission agent must notify the committent of the deviations from his instructions as soon as it becomes possible (Article 1017 of the Civil Code of Ukraine).

Subcommission.

Upon the consent of the committent, the commission agent has the right to conclude a subcommission agreement with a third party (subcommission agent), while remaining responsible for the actions of the subcommission agent to the committent. Under a subcommission agreement, the commission agent acquires the rights and obligations of the committent in relation to the subcommission agent. In exceptional cases, if the interests of the committent so require, the commission agent has the right to conclude a subcommission agreement without the consent of the committent. The committent does not have the right to enter into relations with the subcommission agent without the consent of the commission agent (Article 1015 of the Civil Code of Ukraine).

It is interesting to fulfil the contract concluded by the commission agent with a third party.

The commission agent shall not be liable to the committent for non-performance by a third party of the contract concluded with him at the expense of the committent, unless the commission agent was reckless in choosing this person or vouched for the execution of the contract. In the event of a violation by a third party of the contract concluded with him by the commission agent, the commission agent is obliged to immediately notify the committent about this, collect and provide the necessary evidence. The committent has the right to demand from the commission agent the assignment of the right to claim against this person (parts 3, 4 of article 1016 of the Civil Code of Ukraine).

Ownership of the property acquired by the commission agent.

The property acquired by the commission agent at the expense of the committent is the property of the committent (Article 1018 of the Civil Code of Ukraine). However, the commission agent has the right, in order to secure his claims under the commission agreement, to hold on to the thing that must be transferred to the committent. If the committent is declared bankrupt, the commission agent is considered the pledgee of the thing held by him (Article 1019 of the Civil Code of Ukraine). At the same time, the commission agent is liable to the committent for the loss, shortage or damage to the committent's property (Article 1021 of the Civil Code of Ukraine).

The rights of the parties to withdraw from the commission agreement.

Unlike the agency agreement, the committent has the right to refuse the commission agreement (part 1 of article 1025 of the Civil Code of Ukraine).

The law may establish the features of a commission agreement for certain types of property (Article 1028 of the Civil Code of Ukraine).

According to Art. 1026 of the Civil Code of Ukraine, the commission agent has the right to refuse the commission agreement only when the term is not established by the agreement. The commission agent must notify the committent of the withdrawal from the contract no later than thirty days later. The commission agent who has renounced the commission agreement must take the measures necessary to preserve the property of the committent.

More details about another type of mediation - an agency agreement, you can find in the article at the link. More details about another type of mediation contract of agency will be in the following InstaDoc articles.

You can fill out the Commission Agreement for the Import of Advertising, Information and Organizational Services in Ukrainian and English at the link. The contract will be filled in automatically with data if you keep a register of your counterparties in the InstaDoc electronic document management system.