Selling goods using a commission agreement, the seller, to a certain extent, makes his life easier, since in this case he does not need to search for customers. But at the same time, this is the danger. After all, the buyer in the end remains an unknown quantity, and the agent cannot be responsible for his decency and good faith. But the state of affairs can be changed in one’s own interests. This is served by the beautiful and sonorous concept of "delcredere." What is this? Let's try to understand this article.
Delcredere - what's this?
The Italian word "del credere" (it. Del credere means "take on faith") means that the agent or commission agent warrants to the principal or principal that the transaction concluded by the commission agent in the interests of the latter will be beneficial in any circumstances. What does it mean? If the agent fails to sell a certain product, then he must compensate the losses to the principal. This is a kind of insurance. Thus, the agent or commission agent in this case guarantees that he takes all the risks of violating the conditions for the performance of obligations by third parties. When fulfilling the contract, the delicreder, the commission agent acts in the interests of the client. However, he will conclude transactions on his own behalf. Customer - principal or principal. This is someone who wants to delegate the conclusion of the transaction in their interests. The agent or agent does exactly that.
Application in any contract
Delcredere can be specified in almost any contract. For example, the agent who provides services to the seller on this document finds the buyer for an additional fee, draws up a purchase and sale transaction. He returns all the money for the goods to the customer. According to the law, the agent is not liable to the principal or the principal for the non-fulfillment by third parties of the terms of the transaction concluded with him in the interests of the principal.
How often is delcredere used in a college of lawyers?
Incidents of liability
But there is a reservation in the law that such liability can occur in two cases:
- If the agent has not shown due attention, making a deal with a specific person.
- If the agent has vouched for the transaction to be executed (delcredere).
The Delcreder Agreement is a transaction that cannot exist without concluding a commission agreement. It is intended to ensure the fulfillment of all conditions of operations that were concluded by the agent with third parties in the interests of the principal. That is, such agreements are accessory to the main contract of the commission. A similar transaction is also included in the category of consensual, onerous and bilateral. Delcredere attorneys carry out quite often.
Differences from the contract of guarantee
The use of a contract with obligations is somewhat different from a contract of guarantee. In the case of the delcredere, the agent concludes an agreement with the principal and, on his behalf, draws up transactions with the final executors. It may seem that this is just a variant of the contract of guarantee, but it is not. Of course, these two types of transactions are similar, but not identical to each other. Both of them conclude an agreement to ensure the fulfillment of obligations and oblige the agent to be responsible for their fulfillment. But the guarantee in the classic version determines the responsibility of the guarantor to the creditor of the debtor, that is, the person who is with the debtor in legal relations that are consistent with the main obligations.At the bar, delcredere is applied daily.
A suretyship agreement does not know such concepts as an agent, principal, commission agent, principal. Each participant in such legal relations acts independently, on his own behalf and at his own expense. In this case, the surety is not associated with the debtor. And with the delcreder, the commission agent signs the contract with the principal, and, on his instructions, draws up transactions with the final executors. And it is before the committent that he warrants that this operation will be carried out properly and on time. At the same time, the customer and the contractor do not have any legal relationship. And the commission agent has two agreements at once - one with the principal, and the second with the final executor.
It is worth noting that delcredere is a frequent occurrence in law practice.
Payment delcredere
When discussing financial conditions, the customer, as a rule, initially pays the amount of remuneration precisely for the delcreder, in addition to the standard fee for the execution of orders. Since these are additional, rather serious obligations that are generally not related to the execution of orders, according to generally accepted standards, the amount of such remuneration is determined in the contract. The client must clearly know how much he assesses his risks, and must indicate this amount in the contract.
If there are no such reservations, then the amount of compensation payments will be calculated based on the amount of remuneration paid under similar circumstances under such agreements. In addition, often the execution of the order itself may be associated with any expenses, for example, storage costs, transportation costs, insurance, etc. In this case, the customer must reimburse them to the agent. What does delcredere mean in the commission agreement? About it further.
Delcreder Agreement Form
Based on the generally accepted requirements for the transaction, the commission agreement between the parties to the transaction (organizations or a legal and physical person) is concluded in simple written form. And the agreement on the delcreder is also executed in a similar way. But that is not all. The terms of the delcreder can be included in the text of the commission agreement, drawn up as an appendix to this agreement or as a separate agreement of an additional nature.
Delcreder Agreement Terms
If we talk about the correct wording of the conditions about the delcreder, then they should be clearly expressed and understandable to the principal. For example: "The agent takes upon itself a guarantee to the principal for the execution by such and such person of such and such a transaction."
There are certain nuances here. The clause of the agreement, indicated in the commission agreement as the duty of the commission agent to be responsible for late payment, the judicial authorities may not accept as evidence that the commission agent has accepted obligations and warrants for the execution of the transaction by other persons. The wording written in this way does not allow us to understand that the agent agrees to be responsible for the late payment made not by himself, but by other persons.
If the contract and other documents in the case do not contain a reference to the clause on the liability of the commission agent for the actions of other persons, then the judicial authorities are unlikely to recognize it as a delcreder, since this clause should be specified in the contract specifically and unambiguously and should not have the possibility of a different interpretation.
When concluding a commission agreement on the terms of a delcreder, it is also necessary to remember the following conditions. The text of the agreement (or the annex to it) should contain a list of transactions in respect of which the del-receiver has been accepted. If the agent assumes responsibility only for a certain type of transactions or part of them, then this should also be reflected in the compiled document. If the contract does not contain such a list, then the delcreder will apply to all transactions that are entrusted to the agent.
In addition, the boundaries of the agent’s liability are specified in the contract.According to generally accepted standards, an employee takes responsibility for the conclusion of transactions and bears full responsibility for them. Of course, the parties to the agreement may also prescribe a different amount of responsibility of the agent in the execution of the transaction with third parties. It also indicates the circumstances in which the guarantee is not enforceable, and obligations to implement it are terminated.
In conclusion, it should be noted that in case of failure to fulfill the commission agreement due to the fault of the principal, the commission agent retains the right to pay commissions and reimburse costs.
Execution of obligations
The commission agent reports to the principal on the fact of the execution of the order. The contractor may inform the commission agent of all available claims within one month from the date of receipt of the report. Of course, if the contract does not provide for a different procedure. If no claims or comments have been made within the regulatory period, the agent’s report is considered accepted.
findings
Thus, summarizing all of the above, we can draw the following conclusion about the contract with the delcreder. Signing a commission agreement with the delcredere allows the client to feel calmer and more confident. After all, the obligations on his behalf will be fulfilled, but even in the event of non-fulfillment of such, he does not remain in the loser. For the commission agent, this form of conclusion of the contract is beneficial if he accurately calculates his strength and is confident in fulfilling obligations under the contract. We examined in detail what delcredere is.