Commercial agency contract
The agent is charged with negotiating or concluding business in the name and on behalf of one or more principals, without being bound to them by a contract of employment. The person who renders the service is called the agent. The person who appoints the agent is the principal.
Form of the contract
The law does not provide for any particular form for the commercial agency contract. It can be concluded orally. The Code of Obligations will apply to all points on which the parties have not agreed.
On the other hand, in order to derogate from the Code of Obligations to the disadvantage of the agent, the written form is necessary. Non-competition clause, shorter termination periods or exclusive mandate: the parties must put these clauses in writing.
When the company is international, the services rendered by the agent are not necessarily located in Switzerland. The question then arises as to which law applies in the event of a dispute. If the principal is not careful, the law of the country in which the agent lives or has his place of business may be applicable. In case of conflict, beware of unpleasant surprises!
Power of representation
In order to simplify, the principal may want the agent to be able to directly conclude contracts with clients, in the name of the company.
On the other hand, the principal may wish to have control over this point. In this case, the agent will only negotiate the contracts and transmit them to the principal. The principal will personally sign the contracts with the clients.
The parties will have to determine the extent of the agent's powers of representation. In particular, they will have to decide whether the agent has the right to enter into contracts directly with customers on behalf of the company.
Employee or self-employed?
Agent or commercial traveler, that is the question! One will be considered as self-employed, the other as an employee, with all that this implies.
It is the reality that counts and not the name that the parties have given to the contract. Work organization, schedules, rules of conduct, choice of clientele... These are all elements that make the distinction between the two possible.
The distinction criteria for social insurance are different. The question of whether or not the agent is economically dependent on the principal is of primary importance. The agent will be considered as self-employed only in very special circumstances. If this is not the case, both the principal and the agent will have to pay social security contributions.