Commission of the agent during the course of a contract (a mandatory or default character of the rule and its consequences)

Bibliogr. s. 95-98

The text deals with Article 761 § 1 of the Polish Civil Code which is contained in the regulation of commercial agency contract. The provision awards an agent the right to claim commission for contracts concluded with clients as a result of his intermediation (both with new clients, as well as with the ones previously obtained by this agent). The provision does not indicate explicitly, whether the rule in question is mandatory or provides a certain degree of optionality (in entirety or with limitation to contract clauses that award additional benefits to a consumer). The text delves into this problem, focusing especially on the commission for contracts concluded with the previously obtained clients (the so-called "commission for indirect interest"). The text argues that the Article 761 § 1 in fine in this regard should be understood as a mandatory rule, which grants an agent an immutable right to commission. The right in question cannot be excluded both by straightforward contract clauses, as well as implicitly, by parties' conduct after conclusion of a contract. This reading of Article 761 § 1 is in line with several various reasons that underpin this provision and the regulation of commercial agency in its entirety. In particular, the rules on commercial agency have strongly protective dimension, resting on the assumption that agent is a typically a weaker party, exposed to predominant bargaining power of the principal. As a result, the major part of these rules have a certain degree of immutability, establishing the standard of protection that cannot be altered contractually to the detriment of an agent. This general functional agenda has been clearly established in the EU 86/653 directive on commercial agency contracts. It provides the key point of reference for interpreting provisions such as Article 761 § 1 that transpose them into the Polish law. Therefore, the commission awarded by this rule should be considered to provide one of the components of the system of agent's protection, which cannot be excluded or altered in contractual dealings.