When the previous Civil Code was in force, the concept of commercial representation in Russian law did not exist. The reasons for this are generally understood. Probably, this is precisely why there are no properly drawn up commercial representation contracts in modern law enforcement practice. 
When did it all start?
This kind of practice has been developed and legal regulation since the mid-90s. In connection with the socio-economic processes taking place in society, many organizations prefer to use the services of commercial missions, for example, when opening branches, the need to carry out some activity in another locality, in the case of exchange transactions. In this regard, there is a need to discuss legal aspects.
The concept of representation and its form
Representation in legal sources means the performance of any legal actions by a representative on the basis of existing powers in the interests of the represented person.
Representation types:
- Legal representation. As the name implies, in this case, any specific registration of authority is not necessary. They arise by virtue of the law.
- Representation based on a civil law contract - contractual representation. Powers arise from a concluded civil law agreement.
- Representation established by an act of a state body, local government or court. For example, the guardianship authority appoints a guardian or trustee to a person in need of guardianship or guardianship. What does the simultaneous commercial representation of different parties mean? About it further.
- Authorization may also be determined by the circumstances in which the representative must act, for example, the seller in the store.
- Commercial representation. This refers to a person who on an ongoing basis autonomously exercises authority on behalf of an entrepreneur to conclude legal transactions in the field of entrepreneurial activity. What is required for this? In order for the commercial representation to exist legally, a contract is concluded in simple written form. The agreement specifies the authority of the representative. Such a representation can exist only as a paid activity. Exceptions are those situations in which the contract contains special provisions on gratuitous cooperation. A commercial representative may be a person who is an individual entrepreneur. Features of such activities in certain areas are determined by law.
Distinctive features
The main distinguishing feature of a commercial representative office is that in some cases specified by law, such a representative may function in the interests of both parties to the contract. At the same time, he protects the rights of both sides, and also fulfills their instructions. Of course, if it is not against the law. In this case, the representative is not composed with those represented in labor relations. We repeat once again that such activity is possible only within the framework of civil contracts on a reimbursable basis.
The role of an intermediary
Thus, we can conclude that the sales representative plays the role of an intermediary between represented and third parties.At the same time, there is no need to talk about the identity of the concepts of “intermediary” and “commercial representative”. Why? Mediation refers to a wider range of responsibilities. The activity of representative offices is of an intermediary nature, which is expressed in the fact that it is implemented on a paid basis in the interests of the other party. The sales office is currently very popular.
Related concepts
A sales representative and, for example, a sales agent, are related concepts, although not identical. That is, persons protecting other people's interests, but acting on their own behalf (executor, declaring the will of the deceased, bankruptcy trustee) cannot be considered commercial representatives.
The commissioners who exercise their powers on the basis of the commission agreement also belong to this category, since they act on their own behalf. An indispensable condition for the performance of a commercial representative office is the availability of authority. Since in the absence of such events no consequences of the activity can exist, in fact, the fact of the activity itself will not take place. In other words, if a representative concluded a transaction without having the appropriate authority, then he himself becomes a party to the transaction. And this gives rise to corresponding legal consequences. But in a situation where the represented person is not opposed to such a transaction, he may approve of it after the fact. In this case, the consequences will be the same as if the representative had all the powers at the time of the transaction. Regardless of when the transaction was specifically approved, the person represented will be a party to it from the moment it is completed. Similar situations may arise when creating joint-stock companies.
Exchange trading
Based on the activities of representative offices in general and commercial in particular, it can be said that the represented person is always a business entity. This can be both an individual entrepreneur and a legal entity. It happens that the law also provides direct instructions regarding the legal form in which one or another commercial representative can act.
Broker
So, for example, legislative acts on exchange activity give a definition of a broker. An individual who has the status of an entrepreneur and is engaged in his activities without the formation of a legal entity can act as this entity. In this case, commercial representations are brokerage firms and independent brokers participating in exchange trading. They have the right to make transactions on the exchange, that is, to carry out transactions on behalf of their client, at the expense of his or their funds.
Insurance agents as business entities
This includes insurance agents. These are individuals or legal entities endowed with appropriate authority and acting on behalf of and on behalf of insurance companies. In addition, in trading activities, such representatives may be vested with exclusive rights. They may enter into transactions on behalf of the principal in the relevant territory. So, summing up all of the above, we can say that the purpose of a commercial representative office in committing actions that establish, can change or terminate the exercise of the rights and obligations of the represented.
Signs and features of commercial representations in civil law
The first sign of such representations is the fulfillment of the terms of the agreement by one person in order to comply with the interests of another. In addition, the representative, as a counterparty, enters into a transaction based on his own will, and not the person represented. Actually, such actions are not performed on behalf of the represented, but in his interests.
The next sign stems directly from the previous one, namely, the rights and obligations obtained as a result of the transaction arise from the represented. A characteristic feature of this activity is its professional character. With rare exceptions, representatives are implemented in a certain area in which they possess relevant knowledge, sufficient qualifications, have special information and business contacts, which allows them to conclude transactions on behalf of a client on a professional basis. This involves a contract of commercial representation.
As we have already mentioned above, the relations of the agent and the person represented always have as their basis a civil contract and order, with or without validity.
The next sign that we also mentioned is the retribution of these relations. The representative, for the services provided, receives a fee. This is usually a percentage of the transaction or a payment of net profit.
Another feature of commercial missions can be called the conclusion of transactions in one area - the field of entrepreneurship. This, of course, requires a certain status of the sales representative. He must be registered and keep relevant documentation.
The limited authority of the representative is also a characteristic feature: the representative can make transactions only to the extent determined by the representative. A similar type of agreement always exists in trade, with which it has a close relationship. It should be noted that in this case the object itself is rather specific. Through an agent, they do not make transactions that are legally permitted only in person (execution of a will, adoption). The sales representative must keep confidential the information about trade agreements made by him. A similar obligation remains after the sales representative has executed the order. We reviewed the forms of commercial representation.
Responsibility for default
The Civil Code establishes liability for breach of obligations by a commercial representative. Are there any exceptions? Exemption from liability in violation of obligations, as in the case of any other entrepreneur, is possible only in the event of force majeure. These do not include: violation of the terms of the transaction by the commercial partners of the representative, lack of necessary goods or services on the market, lack of financial resources.
In addition, the representative is fully responsible for the actions of his employees and third parties involved. Creating a commercial representation, it is necessary to determine the most detailed range of rights and obligations, as well as provide for types of responsibility in various cases.
Full liability
The law allows you to conclude full liability agreements with the agent. Also, in the case of commercial missions, legal authorization contracts or, for example, agency services will be legal. Or their varieties, such as a brokerage or service agreement. The issue of a power of attorney from the represented person is considered to be a unilateral transaction that also generates the powers of a representative. Thus, a commercial representative office is a legal relationship arising between three parties that involves the conclusion of a transaction by one person in the interests of another with a third. In this case, the legal consequences of this transaction arise directly from the represented.
Commercial representation and its legal forms may interest many.
Benefits of using
Using the services of commercial representatives represents a number of significant advantages for entrepreneurs. This legal tool, when used properly, is effective and cost-effective.An example is the opening of a branch by an organization in a remote area. Using the services of a commercial representative office on site allows you to avoid material costs, waste of time when opening an institution. This allows you to get started much faster.
In addition, an agreement is concluded with a representative in which financial remuneration is directly dependent on the success of its activities. That is, if there is a result, services are paid, there is no result - there is no money. The advantages include the fact that the commercial representative is not connected with the employment relationship with the represented. This allows you to regulate such relations by civil law, rather than labor. All of the above allows us to conclude that the use of representative services can be an effective and efficient way of doing business. This form of relationship has many advantages. We examined the features of commercial representation.