B) KINDER PLAZA ECOPOLIS:
2.3 BASE CONCEPTUAL
1 A buying or selling commission agent is a person who, in return for a commission, buys or sells chattels or securities in his own name but for the account of another (the principal).
2 The provisions governing agency apply to the commission agency relationship, unless otherwise provided in this Title.
Art. 426
1 The commission agent must keep the principal informed and in particular must notify him immediately of the performance of the commission contract.
2 He is obliged to insure the goods on commission only where so instructed by the principal.
Art. 427
1 Where the goods for sale on commission are evidently defective, the commission agent must safeguard the rights of recourse against the carrier, secure evidence of the defective condition of the goods, pre- serve the goods where possible and notify the principal immediately. 2 If the commission agent omits to discharge these obligations, he is liable for any damage caused by such omission.
3 Where there is a risk that the goods for sale on commission will rapidly deteriorate, the commission agent has the right and, should the interests of the principal so require, the obligation to arrange their sale with the assistance of the competent authority of the place where the goods are located.
Art. 428
1 Where the commission agent sells goods below the minimum price instructed, he is liable to the principal for the difference 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.
III. Approval of agency activities A. Buying and selling commis- sion I. Definition II. Obligations of the commission agent 1. Duty of notification, insurance 2. Treatment of goods on commission 3. Pricing by the principal
2 Furthermore, where the commission agent is at fault, he must com- pensate the principal for any other damage caused by the breach of contract.
3 Where the commission agent buys at a lower price or sells at a higher price than instructed by the principal, he is not permitted to retain the profit but must credit it to the principal.
Art. 429
1 A commission agent who makes cash advances or extends credit to a third party without the consent of the principal does so at his own risk. 2 However, where sale on credit is the customary commercial practice at the place of sale, the commission agent is entitled to sell on credit unless the principal has instructed otherwise.
Art. 430
1 Except where he extends credit without authority, the commission agent is liable for the debtor’s payment or performance of other obli- gations only to the extent that he has expressly assumed such liability or if this is a customary commercial practice at his place of business. 2 A commission agent who assumes liability for performance by the debtor is entitled to special remuneration (del credere commission). Art. 431
1 The commission agent is entitled to reimbursement of all advances, expenses and other costs incurred on the principal’s behalf plus inter- est on all such amounts.
2 He may also claim remuneration for storage and transport costs, though not for the wages of his employees.
Art. 432
1 The commission agent is entitled to commission on execution of the transaction or failure to execute it for a reason attributable to the principal.
2 In the case of transactions that could not be executed for other rea- sons, the commission agent is entitled to remuneration for his endeav- ours only to the extent provided for by local custom.
Art. 433
1 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.
4. Advances and loans to third parties
5. Del credere
III. Rights of the commission agent 1. Reimburse- ment of ad- vances and expenses 2. Commission a. Entitlement b. Forfeiture and conversion into transaction for own account
2 Moreover, in both these cases the principal has the right to take action against the commission agent himself as buyer or seller. Art. 434
The commission agent has a special lien in respect of the goods on commission and the sale proceeds.
Art. 435
1 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.
2 The auction may be ordered without first hearing the principal if neither he nor a representative is present at that location.
3 However, official notice must be served on the principal before the auction is held, unless the goods in question are susceptible to rapid deterioration.
Art. 436
1 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. 2 In both cases, the commission agent must account for the exchange or market price that applied at the time the instruction was executed and is entitled to both the usual commission and reimbursement of the expenses normally incurred in commission business.
3 In other respects the transaction is treated as a contract of sale.
Art. 437
Where the commission agent is permitted to act for his own account and he 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. Art. 438
The commission agent is not permitted to act as buyer or seller if the principal has withdrawn his instruction and the notice of withdrawal reached the commission agent before he dispatched the notice of execution.
3. Special lien
4. Sale of goods at auction
5. Agent acting for his own account a. Pricing and commission b. Presumption of trading for own account c. Lapse of right to trade for own account
Art. 439
A forwarding agent or carrier who in return for payment undertakes to carry or forward goods for the consignor’s account but in his own name is regarded as a commission agent but is subject to the provi- sions governing contracts of carriage in relation to the forwarding of the goods.