Agency contracts ? existing regulations in romanian laws

• Author: Cristina Cojocaru
• Pages: 124-129

AGENCY CONTRACTS – EXISTING REGULATIONS IN ROMANIAN LAWS

PhD student Cristina COJOCARU

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Abstract

Agency contracts are created a s legal instruments with a highly important r ole for the business activity,

given that they are the basis for professional intermediation. Regulations have changed in time, in an attempt to offer

a better apprehension of the notion and applicability of this type of contr act through the legislative framework. In

Romanian law, this type of contract was regulated for the first time by Law no. 509 in 2002 on permanent

commercial agents, law that was repealed when the new Civil Code came into force on October 1, 2011.

Keywords: agency contract, agent, right of representation, exclusivity

JEL Classification: K12

Currently, in Romania agency contracts are regulated by articles 2.071-2.095 of the Civil

Code

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. Article 2.072 of the Civil Code defines agency contracts as contracts whereby a principal

firmly empowers an agent either to negotiate, or to both negotiate and sign contracts in the name

and on behalf of the principal, in exchange for remuneration, in one or several specific regions

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.

Thus, it was decided, for instance, that an arrangement whereby one party identifies

partners for the beneficiary, intermediates the beneficiary’s offer and controls the works schedule

according to the orders sent by the persons accepting the offer, in exchange for remuneration

determined in advance as a percentage, has the legal nature of an agency contract

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.

With respect to the scope of application, such is set in accordance with article 2.071 of the

Civil Code by excluding the activities to which agency contracts do not apply, and namely:

activities of the persons that act as intermediary in case of stock exchange markets and regulated

freight markets and derivative financial instruments

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; persons acting as insurance and reinsurance

agents or brokers

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; persons providing a service that is not remunerated as agents.

The same article, in paragraph (2), sets forth that as defined in the Civil Code, the

following are not deemed agents: persons who (i) have the capacity of legal or statutory body of a

legal entity with the right to represent it; (ii) are shareholders and are empowered to duly

represent the other shareholders; (iii) have the capacity of trustee in bankruptcy, liquidator, legal

guardian, curator, custodian or attachment-administrator in relation with the committee.

The definition provided in article 2.072 of the Civil Code also indicates the legal features

of this contract.

A first legal feature of agency contracts is their reciprocal nature, with rights and

obligations for both parties.

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Cristina Cojocaru, associate teacher with the Bucharest University of Economic Studies, lawyer at Musat & Associates, e -mail

address: cristinacojocaru5@gmail.com.

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Law no. 287/2009 on the Civil Code, republished in Official Gazette no. 505/2011, Part I.

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For deta ils regarding the view taken by the doctrine and previous regulations, see Gh. Stancu, “ Intermediarii in comert.

Contractul de agentie” in Dreptul magazine, issue 11/2007, T. Pescure, R. Crisan, “Contra ctul de a gentie – un nou contract

numit in dreptul comercial roman”, in Dreptul magazine issue 7/2003, D. Velicu, F. Basenghi, “Impactul dr eptului comunitar in

definirea reprezentarii comerciale – contractul de agentie” in the magazine Revista Romana de Drept Comunitar issue 4/2006.

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See Decision no. 747 of February, Commercial Division o f the High Court of Cassation and Justice of Cassation Bulletin no.

4/2006, p. 35.

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See Law no. 297/2004 on the capital market, published in Official Gazette no. 571/2004, Part I and Law no. 357/2005 on stock

exchanges, published in Official Gazette no. 1115/2005, Part I, which regulate these categories of intermediaries.

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See Law no 32/2000 on ins urance companies and insurance supervision, published in Official Gazette no. 148/2000, Part I,

which regulates these categories of insurances.