2.2. A parity of duties of agents and the rights of the principal by the right of Scotland

On a general law the agent is obliged to execute the brokerage contract according to its conditions. Instructions of the principal should be accurate, and the agent on will bear a liability for damages, caused as a result of not enough accurate instructions (ambiguity of the instructions).

According to Regulations about the commercial agent of 1993 the commercial agent has a similar obligation to carry out all reasonable (reasonable) instructions принципала.237 If the agent operates in infringement of the instructions given to it (in such a way as to breach the express instruction) it will bear responsibility for all caused losses. If the principal has not given instructions in the obvious form, the agent is obliged to operate according to usual practice of trade, in which it works (usual in the particular trade).238

The agent should execute the brokerage contract c professionalism and discretion (skill and care) though the limit of this obligation can vary. Doktrinalnye commentators Erskin and R.Bell identified this duty of the agent with the reasonable person in management of the affairs. If the agent carries out the professional work its duty is to run business of the principal as reasonably competent and the conscientious worker of the given trade. The duty of the agent can depend on features of concrete sphere of trade (custom in the particular trade), before the developed practice of business management between counterparts (any course of prior dealing between parties) and concrete circumstances (particular [237] [238] circumstances of the case). If the agent breaks the duty to run business of the principal with professionalism and discretion, the principal can demand the indemnification. The court can take into consideration any circumstances of business, including indistinct instructions принципала.239

The agent has fiduciary duties (fiduciary duty) which characterise the brokerage contract as the legal relations based on trust and conscientiousness. The regulations of 1993 impose the obligation on the commercial agent to care about interests of the principal, also to operate responsibly and honesty (dutifully and in good faith).240 Though Regulations of 1993 in details describes the given obligation, it does not settle the list of obligations of the agent in this respect. The commercial agent should:

1) to make appropriate efforts (proper efforts) for the coordination and if it is applicable, makings contract which is specified by the principal in the instruction;

2) to transfer to the principal the necessary information which to it is known;

3) to operate according to all reasonable instructions принципала.241

One of the major fiduciary duties of the agent is the duty to report about all incomes (to account for all benefits), received in brokerage contract course of execution. Incomes include not only money and represents everything, that is received over fee under the brokerage contract. This duty, nevertheless, does not forbid [239 [240] [241] agent to work on other principal even if it means a competition to the initial principal.

Such reservation on an interdiction for a competition (non-competition clause) cannot be condition in law and should be in an explicit form fixed in the contract. Infringement of this obligation will not entail the claim of the principal about the indemnification, and the claim about rendering account in execution of the agency commission (action of accounting) is faster. If the principal has a decree in its advantage the agent should pay it all incomes which would be received by the principal if the agent has executed the duty. The principal also can acquire the right to brokerage contract cancellation. [242]

The agent is obliged to keep as fiduciary the confidential information on the principal and its enterprise activity. The given obligation not necessarily comes to an end with the termination of period of validity of the brokerage contract.

The agent is obliged not to conclude any contracts with the principal which presume to be enriched to the agent at the expense of the principal. The given duty is a part of more global duty: not to suppose a situation when interests of the agent are crossed with interests of the principal. If the task to buy the goods at the third party has been given the agent, and instead it has got the given goods for itself(himself) the principal can break off the contract and demand from the agent the income got by the agent by means of this contract. [243]

The agent has not the right to subcontract to other person the powers on execution of problems, it was entrusted to make which to it according to the brokerage contract. This duty provides set of exceptions, therefore to reflect that fact more effectively, that the agent has the right to subcontract the powers only in certain cases. The obligation not to subcontract the powers is based on the general for all contracts a rule of "a choice of the executor (delectus personae), establishing, that if the agent is chosen on the basis of the qualification the retrust is inadmissible. [244] Doktrinalnye commentators Steir and J. Erskin noticed, that the retrust is not supposed, if the problem of the agent demands certain qualification. The parties can always fix an admissibility or a retrust interdiction in the brokerage contract. Earlier developed practice of business management (custom of a particular trade) also can affect retrust possibility. If the task of the agent obviously is beyond its qualification the retrust right is meant. [245]

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A source: Afanaseva Taisija Aleksandrovna. LEGAL REGULATION OF RELATIONS OF THE TRADING TURN In Scotland. The dissertation on competition of degree of the master of laws. Moscow, 2017. 2017

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