Considerations regarding the definition and classification of commercial intermediation

• Author: Dan-Alexandru Sitaru
• Position: Assistant, Ph.D. candidate, Law Faculty, 'Nicolae Titulescu' University, Bucharest, Lawyer, member of the Bucharest Bar Association
• Pages: 97-112

Dan-Alexandru Sitaru

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LESIJ NO. XVIII, VOL. 1/2011

CONSIDERATIONS REGARDING THE DEFINITION

AND CLASSIFICATION OF COMMERCIAL INTERMEDIATION

Dan-Alexandru SITARU∗

Abstract

The commercial intermediation is a complex juridical operation which includes a different

number of juridical relationships that takes place between contractual partners either on a

national or international level. These partners bare different naming due to their different set of

rights and obligations set forth by the law or by the parties, and it is from this that the

classification of the intermediation can be set forth. The commercial intermediation represents the

activity that one person executes either in the name and on behalf of another person, or using its

own name but on behalf of another person, or, finally, using its own name but on behalf of acting

towards a common goal with the person who mandated her (the principal), in relation with who it

is either a proxy or an independent intermediary, only negotiating or both negotiating and binding

the principal. The purpose of the paper is to strictly define and set in order the various variations

of the juridical operation that is the commercial intermediation, presented both in the light of the

actual legal framework and also by reference to the New Civil Code. Also, the purpose is to

highlight and systematize the contractual relationships from which the parties involved in a

commercial intermediary operation may choose and the rights and obligations specific to each

contract.

Keywords: commercial intermediation, contract of mandate, contract of commission,

agency contract, brokerage contract, franchise contract, exclusive distribution contract

1. Introduction. The notion of commercial intermediation.

a) Intermediation – complex commercial operation

Commercial intermediation is a complex operation, which includes several legal relations

concluded between its contractual partners, having various names and various capacities, carried

out either inland or internationally.

Participants to legal relations arising out of intermediation contracts bear various names,

depending on the actual contractual relation to which they participate, the capacities in which they

act may range from that of mandator and mandatary (in the case of the contract of mandate), to

that of principal and commission agent (in the case of the contract of commission), of consignor

and consignee (in the case of the consignment contract), principal (client) and sender or shipper (in

the case of the shipment contract), principal and agent (in the case of the agency contract), client

and broker (in the case of the brokerage contract) etc.

Independently from the legal nature of each intermediation contract, a common feature of

all forms of intermediation may be discovered. This discovered feature, common to all forms of

intermediation, consists of the object of the intermediation, namely, in that the intermediary, by

means of the rendered activity under a specific commercial intermediation contract, acts as an

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∗ Assistant, Ph.D. candidate, Law Faculty, “Nicolae Titulescu” University, Bucharest, Lawyer, member of the

Bucharest Bar Association (e-mail: sitaru.alexandru@yahoo.com).

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LESIJ NO. XVIII, VOL. 1/2011

agent for particular commercial affairs between particular partners or on behalf of another person

(client), in exchange for payment. This particularity gives the contracts, based on legal relations of

commercial intermediation, an onerous feature1.

Generically, intermediation contracts are contracts for services, the intermediation activity

carried out under such contracts favour, especially commercially speaking, the exchange of goods

and in general economic development.

b) Origin of commercial intermediation

The origin of commercial intermediation is to be found in the Middle Ages, when it was

used every day for carrying out commerce practised at distance. In the 10th and 12th centuries in

Italy and in Northern Europe drafts similar to those of the nowadays contract of commission

appeared. Commerce at distance carried out on a daily basis by frequent exchanges occurring in

European medieval fairs, represented the premise for the first forms of intermediation.

The fast-paced development of commercial transactions, occurring throughout Renaissance,

lead to the necessity of adapting commercial transactions, in view of traders cooperating and

improving the actual means of exchanging goods.

It was during this period that the commercial mandate was born2. However, along with it,

as an expression of the expansion of the principle of free commerce, especially international

commerce3, other types of intermediation were encountered more and more often, similar to the

nowadays commission and agency contracts.

Indeed, the ever higher complexity of the concluded operations and the obstacles, given the

large geographical areas in which such commercial relations arose, along with the language and

culture barriers and the significant differences in terms of laws, lead throughout time to the

necessity of discovering some advantageous methods for traders to enter and expand in markets

from other states, in order to conclude international contracts under easy terms and to maintain

durable economic connections4. One method which was frequently resorted to as a result of

international commerce developing was the execution of intermediation contracts namely contracts

of commission.

Once with the development of international commerce, a tradesman entering a foreign

market in which he could sell his goods had to be done, via persons they knew on the local market,

who had earned their trust and were prestigious, thus procuring the popularization and personal

guarantee of their products5. The persons in question, who became the intermediaries under the

conventions they executed with foreign tradesmen, carried out the required precedent operations

and effectively executed commercial contracts in their own name or on behalf of clients; the

effects of such contracts reflected upon foreign tradesmen.

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1 See R. Munteanu, Intermediation contracts in Romanian foreign commerce (Contracte de intermediere în

comerYul exterior al României), Printing House of the Academy of the Romanian Socialist Republic, 1984, p. 138.

2 See F.A. Moiu, Commercial intermediation contracts without representation (Contractele comerciale de

intermediere f<r< reprezentare), Lumina Lex Printing House, Bucharest, 2005, p. 24-25.

3 For a more detailed analysis of the principle of free commerce, see Dragoş A. Sitaru, International Commerce

Law. Treaty. General Part (Dreptul comerYului internaYional. Tratat. Partea general<), Universul Juridic Printing

House, Bucharest, 2008, p. 20-24.

4 V. Anghelescu, Al. Deteşanu, E. Hutira, International Commercial Contracts (Contracte comerciale

internaYionale), Printing House of the Academy of the Romanian Socialist Republic, Bucharest, 1980, p. 106-113.

5 See R. Petrescu, General theory of commercial obligations. General Part (Teoria general< a obligaYiilor

comerciale. Partea general<), Romfel Printing House, Bucharest, 1994, p. 185.