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
SUMMARY

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... (see full summary)

 
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Dan-Alexandru Sitaru
97
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).
98 Lex ET Scientia. Juridical Series
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. Moiu, Commercial intermediation contracts without representation (Contractele comerciale de
intermediere fr 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.

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