Le contrat d'achat-vente

The commission contract is a kind of contract that commission agent incur a debt of buying or selling chattels or securities in his own name but for the account of the principal, in return for this, the principal undertakes to pay fee (commission). The scope of this definition, the provisions of commission contract are: 1) Commission agent is a person who execute legal transaction with third party in his own name but for the account of the principal; 2) The subject of commission contract is chattels or securities; 3) Fee; 4) Agreement of the parties. The commission contract is a synallagmatic contract. The commission contract is both instantaneous performance obligatio and qualified agency contract. The articles of agency contract are applied to this contract except for the clauses that are arranged specially with articles of code related to commission contract. The other property of commission contract is being an agency contract consisting indirect representation. In the commission contract, the first obligation of the commission agent is concluding sale contract and performing this contract. If the commission agent conclude with third person not in his own name but for the account of principal but in his own name and his own account, it is not possible to be forced to assign the acquired thing to principal. Commission agent can only be awarded to pay damages to the principal. If the third party avoids performing the obligation of sale contract to the principal, the commission agent can not demand the damage of principal from third party. The second obligation of the commission agent is keeping the principal informed. The commission agent must notify any kinds of important event to the principal for exercising the rights of giving instruction and termination of contact of principal. In addition to this, the commission agent must notify to the principal the performance of the commission contract. This notification must include the identity of third person except the cases that the commission agent acts with himself. If the commission agent omits his duty of notification, he must indemnify the damage of principal because of this omission. The other obligation of the commission agent is insuring the goods on commission. Unless the principal instruct to insure the goods, the commission agent would not oblige to insure the goods on commission. If the commission agent does not insure the goods on commission in spite of the instruction of the principal, the commission agent must indemnify the damage of principal because of this. The other obligation of the commission agent is safeguarding to goods on commission. The commission agent must treat the goods and if the goods on commission are evidently defective, the commission agent must safeguard the rights of principal against the carrier. The commission agent must also determine the defect and preserve the goods. Where there is a risk that the goods for sale on commission will rapidly deteriorate, the commission agent must sell the goods on condition of notifying to the the principal. If the commission agent omits to discharge these obligations, he must pay the damage of principal because of this. The fifth obligation of the commission agent is compliance with instructions. Illegal and immoral instructions do not bind the commission agent. If the commission agent deviates from the principal's instructions, this constitutes the breach of the contract. In this case, the commission aganet must compensate the principal for any other damage caused by the breach of contract. The commission agent undertakes the results of not performing the contract as deviation from the principal's instructions, he can demand from the principal to pay the fee and costs. The commission agent's obligation of compliance with pricing by the principal is arranged specially in Turkish Code of Obligation. Where the commission agent sells goods below the minimum price instructed, he can not assume principal for the differance unless he can prove that such sale averted loss or damage that the principal would otherwise have incurred and that he was unable to seek the principal's instructions in the time available. The commission agent's obligation of compliance with pricing by the principal is arranged specially in Turkish Obligation Code. Where the commission agent sells goods below the minimum price instructed by the principal, he can not assume the differences of price instructed by the principal and actual price as a damage. If it is XIX advantage for the principal and it is not possible to receive instruction from the principal, the commission agent can sell at a lower price than instructed by the principal. If the commission agent does not obey the principal's instructions related to price, the commission agent must compensate the differences of price instructed by the principal and actual price as a damage. The commission agent must compensate the other damages of the principal. Also, the commission agent must assign the overage price that is gained from the goods on commission are sold. The other obligation of the commission agent is not selling goods on credit and not making cash advances before receiving goods. The commission agent can sell goods on creditor make cash advances before receiving goods if the principle consents or ratifies. According to customary commercial practice at the place of performing the contract, the commission agent can sell on credit. If the commission agent violates his obligations, the commission agent must compensate the damages of principal. An another obligation of the commission agent is the obligation of delcredere. Even though the commission agent is not responsable for result in the commission contract, the the commission agent is liable for the debtor's payment or performance of other obligations only to the extent that he has expressly assumed such liability or if this is a customary commercial practice at his place of business. The delcredere obligation of the commission agent is a special kind obligation of guarantee. The commission agent is liable to the principal for the diligent and faithful performance of the business. The burden of proof of not performing the commissionagent's duty of care belongs to the principal. The commission agent and the principal can make irresponsible ness agreement for limiting the compensation as a result of not performing the commission agent's duty ofcare. If the commission agent does not perform his duty of care, he must compensate the damages of principal and he loses the right of ask for price. According to article 506/al. I of Turkish Obligation Code, the commission agent must perform the business by himself. But, in some circumstances that are stated in the above mentioned article, the commission agent can delegate third party to perform the business. The commision agent who delegate third party to perform the business without authority, XXI extent provided for by local custom. The commission agent forfeits his right to commission if he has acted improperly towards the principal and in particular if he has secured an inflated purchase price or a deflated sale price. Moreover, in both these cases the principal has the right to take action against the commission agent himself as buyer or seller. The second obligation of the principal is the reimbursement of all advances, expenses and other costs of the commission agent. The performance of this obligation is not bound to the success execution of the commission contract. The commission agent can demand the expenses incurred in the proper performance of the commission contract. The principal must also pay the interest. The commission agent may also claim remuneration for storage and transport costs, though not for the wages of his employees. An another obligation of the principal is the releasing of the commission agent from obligations entered into. The principal must release the commission agent who entred into an obligation for the proper performance for the commission contract. The principal can release the commission agent by satisfying the third party or by novation or by assumption of the debt. The last obligation of the principal is the compensation of the commission agent for damage. The principal must also compensate the commission agent for any loss or damage incurred in performance of the commission contract unless the principal can prove that the damage occurred through no fault of his own. The legal transfer of right is given to the principal to protect him from the non performance of the obligation of returning the things received by the commission agent or from bankruptcy or seizure. When the principal fulfilled all his obligations towards the commission agent under the commission contract relationship, the claims pass to the principal according to law. The same applies in relation to the commission agent's assets if the commission agent is bankrupt. Similarly, where the agent is bankrupt, the principal may claim chattels of which the agent took possession in his own name but on the principal's behalf, subject to the agent's own rights of lien. Where the goods on commission remain unsold or the order to sell is withdrawn and the principal fails to take them back or otherwise dispose of them within a reasonable time, the commission agent may apply to the competent authority at the place where the goods are located to arrange to have them sold at auction. Unless otherwise instructed by the principal, a commission agent instructed to buy or sell goods, bills of exchange or other securities with a quoted exchange or market price is entitled, in his own capacity as seller, to deliver the goods he is instructed to buy or, in his own capacity as buyer, to purchase the goods he is instructed to sell. İf the commission agent notifies the principal that the instruction has been executed without naming another person as buyer or seller, the presumption is that he himself has assumed the obligations of the buyer or seller. The right of the commission agent ends when the notice of withdrawal of the principal reached the commission agent before he dispatched the notice of execution. It is necessary to distinguish the general causes of termination and the specific causes of termination related with agency contract. The first cause of the end of the commission contract ist the termination of the commission contract by the parties. The use of rigth of termination is an unilateral legal act. The right of termination is an imperative provision. When the commission agent using this right at an inopportune juncture must compensate the other for any resultant damage. The commission contract also ends with on loss of capacity to act, bankruptcy, death. Otherwise, if the parties agree or implied by the nature of the agency business, the commission contract may continue