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2.2. The parties of the contract of factorage

1. The parties of the contract of factorage is the commission agent who on its own behalf, but for the account and in interests of other party makes the charged transactions, and

The committent, under the commission and in which interests the commission agent and on whose operates

1 see More in detail: S.V.qualitative's Fast walkers the commission//the EZH-LAWYER.

2002. № 49. With. 3.

To the party finally there is an economic result (effect) of activity of the commission agent. Thus it is necessary to underline, that a category «the party of the contract of factorage» and a category «the participant of commission relations» do not coincide completely under the maintenance. So, to participants of commission relations besides the committent and

The commission agent the third party with which the commission agent enters the transaction in concerns

Commission order execution. However as «the contract can show the

Legal force only between counterparts »', this third party, contrary to a position,„ 2

Existing in the literature, it is impossible to carry to the parties of the contract of factorage, as it

Does not express the will at the conclusion of this contract, does not participate in its coordination

Conditions, and in most cases at all does not know about existence of the commission contract, including the commission agent the independent subject operating in the interests. Nevertheless "third party" participates in commission relations at a stage of the execution of a contract concluded by the commission agent on the instructions of the committent. But the given circumstance does not connect "third party" with the committent [99 [100] [101]. They cannot declare mutual requirements even in a case when the commission agent specifies to the third party of the

The committent.

2. The commission agent is, as a rule, the most active party of the contract of factorage. Its actions on fulfilment of transactions constitute a subject of the given contract. Therefore in definition of the commission agent as the parties of the contract of factorage are pawned essential vidoobrazujushchie signs of the contract of factorage,

Allowing to delimit it from adjacent contracts.

Many researchers perfectly mark a duality and

* Irrationality of a legal status комиссионера1. So, on the one hand, it,

Operating on its own behalf, is the independent participant of the civil circulation who are getting the rights and carrying out duties. On the other hand, the commission agent carries out functions of the entrusted representative лица2, operating on the instructions of the committent. Therefore more often commission agent in internal relations of the commission identify with поверенным3 with what it is necessary to agree. Within the limits of these relations they

• ' both are not independent subjects of the civil circulation, as

Carry out the commission of the committent and are obliged on pain of responsibility to follow instructions of the last. Both the commission agent, and the attorney are authorised on realisation of actions in interests of other person - the committent or the principal.

Owing to it both of them are accountable to the principals. The basic differences in their legal status lay in sphere of external relations and are reduced, as has already been specified, to differences of contracts of factorage and

0. Commissions.

In the literature of the Soviet period it was specified, that in commission activity the specialised enterprises have the right to be engaged only. Modern researchers

Commercial legal bodies frequently carry to commission agents only or

The physical persons having the status of the businessman without education of the legal person. The Soviet legislation really provided, that, for example, in sphere of service of the population in a role of the commission agent commission fee could act only

The shops which are created in a special order and engaged exclusively

Commission business of the consumer goods which were in the use. In foreign trade in commission activity the specialised were engaged only

1 Sm; Farbshtejn A.Sovetskoe the legislation on the contract of factorage//the Right and a life. 1927 Kn. 6-7. With. 18; Grave K.A.decree. soch. With. 307; Sadovsky In, the Contract of factorage and an inconsistency of persons participating in it//Magazine civil and criminal law, 1890. Kn. 5. With. 74.

2 Landkof S.N.commercial transaction. The theory and practice. With. 218.

3 See; for example, Farbshtejn A.Sovetskoe the legislation on the contract of factorage//the Right and a life. 1927

• Kn, 6-7. With. 18; Koblenz n under the Civil code of RSFSR//the Weekly journal of the Soviet

Justices. 1926. Kg 60. With. 1401.

The organisations - foreign trade объединения1 and trade agricultural • ' in production on the commission beginnings the organisations consumer could only

Cooperations. Similar restrictions spoke necessity of struggle against gamble and unearned доходами2. However any direct general interdiction for commission activity the Civil code of RSFSR of 1922, 1964, the Basis of the civil legislation of USSR and republics of 1991 did not contain, and formally as the commission agent in the contract of factorage any could participate

• ' the capable participant of the civil circulation, including physical persons.

Today the restrictive approach to a question of the status of the commission agent

It is proved by that its activity, being the profit regular and directed on reception, concerns a version of enterprise activity. And according to paragraph Z item 2 item 1, items 1, 4 items 23, items 1, 3 st, 50 GK the Russian Federations enterprise activity cannot be engaged the physical persons who do not have the status

g the individual businessman, and noncommercial legal bodies, in

Which constituent instruments realisation possibility directly is not fixed

The given activity. However the law the given point of view does not prove to be true. The Civil code of the Russian Federation, the same as also its predecessors (including pre-revolutionary standard акты3), does not provide any general restrictions on realisation of commission activity, including not

Provides realisation of the given activity only businessmen. Restrictions are established by the special legislation and have exclusive character. So, for example point 3 st, 8 Federal acts «About the organisation of insurance business in the Russian Federation», providing a special kind of commission activity —

1 Bezruk N.A.decree. soch. With. 4.

2 Krasavchikov O. A, Yakushev V. S. The decree. soch. With. 8.

3 In particular Law item 541 «About the contract of the trading commission» provided that the commission agent can operate as that or in the form of a craft, publicly offering the services, or is not present. In the first case the contract of factorage was called as the contract of the trading commission, and the commission agent under such contract

• Movchanovsky n has been obliged to carry out only commission activity і on

To the Soviet right//Working court. 1926. № 2. With. 132-133; Kechedzhi-Shapovalov M.V.Ukaz, soch, With. 2,

Activity of the insurace broker, it is established, that as the last can

* To act only the legal body or the businessman without formation of the legal person. Besides, proceeding from sense of the specified Federal act, and also item 938 GK the Russian Federation, follows, that the insurace broker who is entrusted with the insurance making contract in interests of the insurance company, should possess the status of the legal person and the licence for activity realisation on insurance. Without the specified licence brokers cannot conclude on its own behalf on the instructions of the insurer

* ' dogovory insurance as thus the broker becomes the debtor in insurance

The obligation (item 2 of item 990 GK) and to take up responsibility under the given obligation has the right only legal or, received corresponding лицензию1. In sphere of exchange and share trade special rules, according to which with the commission agent - the broker also operate, the legal body or the businessman without formation of the legal person can act only,

* Received the corresponding licence (item 9, 10, 23 Laws of the Russian Federation «About commodity exchanges and exchange trade», Federal act item 2,3,39 «About securities markets» 2).

3. As now certain kinds of enterprise activity according to the Federal act «About litsenzirovanni separate kinds of activity» 3 come under to obligatory licensing, and their realisation without the licence is forbidden, including it is forbidden to make on pain of invalidity

The transactions directed on realisation of given kinds of activity (item 173 GK the Russian Federation),

There is a question on necessity of reception by the commission agent of the licence for fulfilment and execution of similar transactions and accordingly commission execution of a contract. It is represented what to answer it it is necessary as follows.

' Fogelson JU.B.comment to the insurance legislation. M: JUrist. 2002 With. 49.

2 See: the Decision of Federal Arbitration court of the Western-Siberian district from 22.12.1999 №

* Ф04/2738А-282/А81-99//KonsultantArbitrazh: the Western-Siberian district: Legal-reference system.

3 GUARANTOR-MAXIMUM: Legal-reference system.

According to the Federal act «About licensing of separate kinds of activity» licensing is come under by a certain kind of activity. As already was

It is noted earlier, as a subject of the contract of factorage fulfilment can act

The commission agent of unilateral contracts, the conclusion of contracts, execution of contracts.

Hence, in case actions or the activity, contracts of factorage constituting a subject, according to the current legislation comes under

To licensing the commission agent to make the corresponding transaction and by that to execute the contract of factorage, should possess the necessary licence. In a case if it that has no, there can be three situations:

1) the Commission agent in the absence of the licence, executes contract the commissions, namely, makes the transaction demanding the licence. Thus anybody from the persons specified in item 173 GK the Russian Federation, has not taken advantage of the right to suing about a recognition of the given transaction void. In this case any adverse consequences neither for the committent, nor for the third party does not come. As according to paragraph 1 of item 2 of item 166 and item 173 GK the Russian Federation the given transaction is osporimoj to a recognition void it is considered valid and generates the rights and duties. Hence, the commission agent will not bear any responsibility in this case as it is considered

Properly executed the commission of the committent.

2) If the transaction concluded by the commission agent without the licence, is recognised subsequently void, the commission agent according to item 393 GK the Russian Federation is obliged to compensate to the committent arisen thereof losses. The commission agent — the legal body or the individual businessman as the professional is obliged to know, that the transactions charged to him demand licence presence. Therefore, if it at absence

Licences were concluded by the contract of factorage which subject includes transactions, for fulfilment

And which executions the given licence is necessary, it will be responsible for default of the contract of factorage as actually charged transaction is imperfect.

If the time of performance of the commission of the committent by the moment of a recognition of the void

* The transaction made by the commission agent without the licence, has not expired, the commission agent will not bear

Responsibility so the law does not limit quantity of "attempts" to execute in limits

The currency of the contract of the commission the commission of the committent.

3) the Commission agent, having concluded the contract of factorage, cannot when due hereunder

To make the transaction entering into its subject, as potential counterparts, knowing

About absence at it the necessary licence, refuse to conclude with it * ' the commission agent any transactions. Default will take place in this case

The commission agent of the contract of factorage because of the commission agent, for what it will bear also

Responsibility according to item 393 GK the Russian Federation.

It is necessary to notice, that absence of the necessary licence at the commission agent is not compensated by presence of this licence at комитента1 even in a case, when execution of the transaction concluded by the commission agent under the contract of factorage is assigned to the committent, in as the commission agent makes transactions on its own behalf, and article 173 GK the Russian Federation demands

Presence of the licence for realisation of a corresponding kind of activity at the person,

Making the transaction. However absence of the licence at the commission agent is not an obstacle for commission making contract on fulfilment of the transaction demanding these

Licences as it can be received later. In a case if the commission agent at commission making contract declares presence at it licences, and its absence subsequently will be established, the committent can demand a recognition of the contract of factorage void as made under the influence of a deceit with compensation of a real damage (item 179 GK the Russian Federation).

Thus, under the operating civil legislation of the Russian Federation as the commission agent any can act physical and the legal bodies who are not necessarily engaged in commission activity on the professional enterprise

* 1 Gorlenko I.I.licensing in intermediary activity//the Russian tax courier. 2002. Ha 17. С.13.

To basis. Thus the legislation on occasion for realisation

* Commission activity the requirement of reception of the permission (licence) is provided. In a case if the licence is required for fulfilment of the transactions entering into a subject of the contract of factorage, the commission agent should possess that under fear

The liability for nonperformance or impossibility of execution of a contract of the commission.

4. During the Soviet period certain restrictions were established also

* ' possibilities to represent itself as the committent. So, at commission sale

The agricultural goods collective farms and collective farmers could be committents only. The persons living in a countryside, leading a part-time farm, but not being members of collective farms (workers of MTS, rural teachers, doctors, etc.), and also

Inhabitants of cities could not conclude dogovory the commission on realisation of production of the

Economy. To hand over things in commission shops have the right there were only citizens.

* To the industrial enterprises long time was forbidden to realise production on a commission basis. Similar restrictions admitted unjustified the Soviet legal literature, excessively narrowing a contract scope комиссии1. The operating Russian legislation does not contain any general restrictions of possibility to act as the committent. Therefore any physical and the legal body can be the last.

* However the question on a legal status of the committent has certain nuances. To take, for example, the most widespread kind of the contract of factorage — the sale commission when the commission agent is entrusted to sell in interests of the committent a certain thing. Interest

Here causes a question on, whether can represent itself as under such contract

The committent only the proprietor of the property transferred to the commission, or other persons who are not proprietors. At first sight, the answer is obvious, of course,

»1 Jakovleva V. F. The Contract of factorage of sale of agricultural production. M: JUrid.lnt., 1959. With. 18­

19.

Only the proprietor as only the proprietor posesses the order right

* That property belonging to it or different way. However now the right of the order property besides proprietors the law allocates also other persons - the state and municipal unitary enterprises which the Russian Federations possess the right of economic conducting to the property fixed to them and according to item 2 of item 295 GK

Can dispose of it, including through the commission agent, taking into account restriction,

Established concerning real estate; the state enterprises,

* ' owning property on the right of an operational administration giving

Possibility to dispose of the given property with the consent of the proprietor (item 1 of item 297 GK the Russian Federation); the confidential managing director who has the right to dispose of the property transferred in confidential control (item 2 of item 1012 GK the Russian Federation). One more interesting case of the order property nesobstvennikom is provided by the legislation on final process. Owing to Federal act item 54 «About executive and manufacture» services of bailiffs through the specialised organisations

Realise distrained goods of the debtor on commission fee or

Other contractual beginnings.

In first two variants the committent - the unitary enterprise, possessing

The limited real right on the property fixed to it, can with the account

Restrictions, statutory to dispose of It. Confidential

* The managing director disposes of the property transferred in control owing to obligations competence.

The case with service of bailiffs is represented to more difficult. According to Federal act item 51 «About final process» the property of the debtor on which it is necessary to turn collecting, comes under to the arrest consisting of the inventory, the announcement of an interdiction to the proprietor - to the debtor to dispose of the given property, and in necessary cases - restrictions of the right of use

Property, its withdrawals or transfer on storage. Thus distrained goods not

* Item 397 item, 39S the Customs code of the Russian Federation from June, 18th, 1993 N 5221 І 1 (item 428 of the Customs code of the Russian Federation from May, 28th, 2003 N 61-FZ [102] [103]) concerning the goods, vehicles and other subjects illegally transported through border carries over the state as it is provided, for example. The proprietor of the arrested person in

Order of final process of property till the moment of its realisation

The debtor continues to remain. Therefore any real rights on the arrested

♦ the service of bailiffs has no property. It is not allocated and any liability laws, allowing to realise the specified property as the service of bailiffs does not enter obligations relations with the debtor - the proprietor concerning property of the last. Therefore remains not clear in what force of the right the service of bailiffs disposes

Distrained goods of the debtor, concluding the sale contract of factorage in quality of the committent with the specialised organisation [104]. A unique reasonable explanation

Similar situation sees that the right of the order property of the debtor at service of bailiffs arises owing to express indication of the law [105] and of some written pleadings - decisions about final process excitation, and also decisions about attachment of property of the debtor and its transfer on realisation.

Differently to dispose of property of the debtor the police officer gets the right not in

* Civil-law order, and in the remedial. Therefore the granted right carries more likely administrative (public), than civil-law character. Realisation of it

Property occurs in a civil-law commission order. The given point

* Sight has found the support in judicial практике1. However, mixture of two various methods of legal regulation hardly should be paid compliments. In this connection in practice, especially at registration of transition of the property right to the real estate, there is a set of questions, for example, why the property right passes directly from the debtor to the purchaser of distrained goods who in this case is the alienor - service of bailiffs or the debtor that is

* The basis of transition of the property right and as it corresponds with provided by the Civil code of the Russian Federation the bases of occurrence and the property right termination etc. It is possible, of course, at entering of record in Uniform state

The register of the rights to be limited to instructions on number and date of the corresponding decision

The police officer and the auction report, not pressing in a being of relations. But it is not the decision of the above-stated problem.

It would be much more expedient to change edition of item 54 of the Federal act

«About final process», having stated it the same as item 398 of the Customs code of the Russian Federation of 1993 (item 428 of the Customs code of the Russian Federation of 2003). In this case the property of the debtor would address in the income of the state, which, becoming the proprietor by means of confiscation, in the name of service of bailiffs by making contract of the commission with the specialised organisation already as the proprietor of commission property

* Would carry out its further realisation. In this case at all stages of realisation of property of the debtor one method of legal regulation - grazhdanskoyopravovoj would be applied. Complexities at registration of transition of the property right thus will be

It is much less.

Thus as the committent under the sale contract of factorage the proprietor of commission property can act; the person possessing the limited real

< 1 See: the Decision of Federal Arbitration court of the Ural district from 11.07.2001 № Ф09-

1060/2001 GK//the GUARANTOR-MAXIMUM: Legal-reference system.

The person, possessing a liability law on commission property, for example - the commission agent under the contract subkomissiii, the confidential managing director or the person who does not have concerning commission property neither real, nor liability laws,

But owing to the law authorised to represent itself as the committent.

Other important point, concerning a legal status of the committent, is connected, as well as in a case with the commission agent, with licensing of separate kinds of activity. As it was already marked, the contract of factorage to the commission agent the conclusion of the corresponding transaction, and its execution, for example, payment of the goods got by the commission agent can be entrusted only to the third party, transfer of the goods to the third party, performance of works, rendering of services to be carried out by directly committent. In this case, if

The activity connected with execution of the transaction concluded by the commission agent, comes under

To licensing, there is a question on the one who should possess the licence? Earlier it has been established, that owing to item 173 GK the Russian Federation on pain of invalidity of the transaction which are a subject of the contract of factorage, the licence in the given situation the commission agent making the transaction necessarily should possess. However according to Federal act positions «About licensing of separate kinds of activity» the committent who is carrying out actions, licensings falling under the requirement and directed on execution of the transaction made by the commission agent, also is obliged to possess the similar licence (for example, at execution as the contractor of the contract concluded by the commission agent building podrjada). Besides, if actions of the committent on execution of the transaction made by the commission agent, also have character grazhdanskoyopravovoj transactions presence at it is necessary for the licence also owing to the item 173 GK the Russian Federation that the performing transaction was faultless, In case the committent in a similar situation, concluding the contract of factorage, does not possess the necessary licence, on

It the risk of the liability for nonperformance or impossibility of execution is assigned

The transaction which are a subject of the contract of factorage, and, accordingly, risk

The liability for nonperformance of the contract of factorage. It is necessary to notice, that responsibility of the committent here has secondary character, as before the third

With the person the commission agent as the party under the transaction answers. To the committent the third party cannot directly address. Having paid damages to the counterpart, the commission agent has the right to make to the committent the demand about compensation of the losses. The basis

Responsibility of the committent default or inadequate in this case acts

Commission execution of a contract, namely duties properly to execute

The transactions concluded by the commission agent.

As well as in a case with the commission agent, in itself absence at the committent of the licence necessary for execution of transactions concluded by the commission agent, is not the unconditional basis of occurrence of responsibility of the committent before the commission agent. Last, having concluded the contract of agency, rendering of services, performance of works with the person possessing the corresponding licence, can, having resorted to the help of the given person to execute the contract concluded by the commission agent, and accordingly will be considered properly executed the contract of factorage. Interests as commission agent, and the third party obliged owing to point 1 of item 313 GK the Russian Federation to accept execution from the committent or other person, in this case will be observed, if, of course, under the contract with the third party or owing to the requirement of the law the commission agent is not obliged

To execute the obligation personally.

If the committent who does not have the demanded licence, independently begins

Execution of the transaction concluded by the commission agent there can be two situations.

The first - favorable for the committent and the commission agent: the committent properly will execute the contract concluded by the commission agent, the counterpart of the commission agent of signs the offered execution. In this case the performing transaction is considered valid, generates the rights and duties. Interests of all participants

The commission relation are observed, desirable economic result will reach. The second situation - adverse — the committent will not execute or in the inadequate image will execute the contract concluded by the commission agent with the third party, or the counterpart

The commission agent, having established absence at the committent of the licence, will refuse to accept it

Execution. In this case the committent will bear responsibility before the commission agent for default or inadequate execution of a contract of the commission as it has been specified

Above.

In a case if the committent at the moment of commission making contract possessed the necessary licence, however by the moment of the beginning of execution of a contract of the commission - executions of a contract of the commission agent with the third party, licence period of validity has expired, consequences as a whole will be similar the aforesaid. However if thus licence term has expired in view of the delay admitted by the commission agent or the third party owing to absence of fault of the committent, it will not bear responsibility pi before the third party, before the commission agent. In this case responsibility for inadequate execution of a contract of the commission is assigned to the commission agent. If delay is admitted because of the third party - the counterpart of the commission agent this third party will bear

Responsibility before the commission agent for delay in performance of the prisoner between

Them contracts and thereof for impossibility of execution of this contract.

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A source: Skorokhodov Sergey Viktorovich. the CONTRACT OF FACTORAGE UNDER the LEGISLATION of the Russian Federation And PRACTICE of ITS APPLICATION In ENTERPRISE ACTIVITY. The dissertation on competition of a scientific degree of the master of laws. Tomsk -.

More on topic 2.2. The parties of the contract of factorage:

  1. 3. The maintenance of the obligation arising from the contract of factorage. Responsibility
  2. 2.3. The form of the contract of factorage
  3. 2.5. Terms in the contract of factorage
  4. 2.1. A subject of the contract of factorage
  5. elements of the contract of factorage
  6. 1.1. The basic historical stages of development of the contract of factorage
  7. 3.3. A property Legal regime under the contract of factorage
  8. the Recognition of the contract of factorage
  9. 1.3. A parity of the contract of factorage with adjacent institutes
  10. 1.2. The economic and legal nature of relations of the commission. A general characteristic of the contract of factorage.
  11. § 4. A recognition of the contract of factorage and codification edikta JUliana
  12. § 3. The rights and duties of the parties under the contract