Agency agreements: nuances of execution and benefits for business

The main difference between agency transactions is that they involve a third participant—the agent. He becomes an intermediary between the seller and the buyer and helps them complete the transaction. Although the appearance of an intermediary complicates accounting, you should not abandon agency agreements - they are beneficial for both parties.

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Pros for the agent himself

1. Reducing the cost of purchasing goods. By concluding an agency agreement, you receive the goods from the supplier for free. You will transfer the proceeds from sales to the supplier, and he will pay you a commission.
2. Reducing the tax burden on the simplified tax system. Under an agency agreement, income is only your remuneration, and not all the money that went through the account. For example, you place an advertisement - the client pays money, most of which you transfer to Yandex. It is not profitable to pay tax on the entire amount, so enter into an agency agreement and take into account only your remuneration in taxes.

Results

Accounting for agency agreements has its own specifics and differs depending on whether the intermediary is involved in the calculations or not. Funds and property received by the intermediary in connection with the execution of the order are not taken into account by him in the balance sheet and do not become his income.

Sources: Civil Code of the Russian Federation

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Three people are involved in the agency agreement

1. Principal - hires an agent and instructs him to sell or buy a product or service.
2. Agent - carries out the instructions of the principal as an intermediary between the seller and the buyer.
3. Seller or buyer - depends on whether the agent is buying or selling.

It's easier to understand with examples.

You have an online store. To deliver the goods, you contact the courier service. In this situation, you, the principal, hire an agent - a courier who delivers the goods to the buyer and receives payment.

You become a principal, even when receiving payment using electronic money (Yandex.Money, PayPal, etc.). After all, the buyer does not pay you directly; the intermediary - the payment system - intervenes in the matter again.

Sometimes the principal instructs the agent not to sell, but to buy the goods. For example, you, the principal, hire a realtor - agent to buy an apartment. This situation also applies to agency transactions.

Characteristic differences of an agency agreement

An agency agreement falls into the category of intermediary transactions with nuances of taxation and the specifics of determining the revenue indicator when choosing tax schemes. Details of the differences with a standard purchase and sale transaction are presented in the table:

When choosing a taxation system, the key parameters include the turnover or revenue indicator. Brave taxpayers can only include commission when calculating the indicator.

The agent works on his own behalf or on behalf of the principal

The agent carries out the assignment in two ways - on his own behalf or on behalf of the principal.

In the first case, the agent introduces himself by his own name and draws up all documents in his name, as if there were no principal at all. The client may not even know that he is working with an intermediary, and will turn to the agent with questions and complaints.

In the second case, the agent draws up all documents in the name of the principal and, as an independent entrepreneur, does not participate in the transaction. This is equivalent to working under a power of attorney, and the agent has no obligations to the client.

Control measures

To count on the required result, the customer must control the work of the contractor.

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There are two directions here:

• Cost control . It should be borne in mind that the agent pays current expenses, and the principal compensates for expenses directly related to the contract. To avoid disagreements, it is better to first draw up and agree on cost estimates and document their excess.
• Action control . The more clearly the required instructions are described, the better. It is good to attach to the contract a business plan that describes the procedure and scope of actions. The ability to provide extraordinary reporting upon request can be documented. In addition, it is not prohibited to send a representative to the scene of action to check the completion of the work.

The agent receives compensation from the principal

The agent's income is the remuneration he receives from the principal. There are a lot of options for calculating it, from simple to complicated. Therefore, we recommend that you pay attention to this clause in the contract. Here are some ways to determine your reward:

1. A specific amount per transaction. This is a reliable option since you know the amount of the reward in advance. But this is not always beneficial for the agent, since he will not be able to earn more than the agreed amount.
2. Percentage of the transaction. This is more profitable for the agent and motivates him to sell more. For example, according to the terms of the contract, the agent will receive 10% from each coffee maker sold. If an agent sells 5 coffee makers for 10,000 rubles, his revenue will be 5,000 rubles.
3. A markup on the price of a product or service. The principal sets the minimum price at which the agent can sell the goods, but does not limit it to the maximum. This method motivates the agent to sell at a higher price. For example, the principal instructs to sell a coffee maker for at least 10,000 rubles. The agent sets his price - 12,000 rubles. After selling the coffee maker, he will transfer 10,000 to the principal and keep 2,000 rubles for himself. This will be his reward.

In addition to the amount of remuneration, the agent and the principal agree on the timing of its payment. There are also several options here:

1. The principal pays the agent before the work is completed.
2. The agent transfers the proceeds from sales minus his remuneration to the principal.
3. The principal pays the agent after the contract is executed. If no deadline is specified in the contract, the principal pays the remuneration within a week after receiving the report from the agent.

Agency agreement

An agency agreement is a new type of agreement for Russian law. This innovation is due to the fact that similar agreements known to Russian legislation do not mediate the entire variety of relationships that arise in the conditions of modern economic activity.

This agreement is widespread in Anglo-American law, where it replaces the traditional contracts of commission and commission in the continental legal system.

The design of an agency agreement in Russian law pursues the goal of civil legal formalization of relations in which the intermediary (representative) simultaneously performs transactions and other legal actions in the interests of others (which is typical for the relationship of commission and commission), and actual actions that do not create legal relations principal with third parties. For example, a person acting as an agent may take on the task of selling someone else's goods, meaning not only the conclusion of contracts for their sale, but also the conduct of an advertising campaign and other activities to study and develop the market (marketing services). In such and similar situations, it is impossible to get by with one of the traditional designs of contracts of agency, commission or paid services. It is necessary to conclude either several different, but closely interrelated agreements between the same entities, or a complex mixed agreement, to which the rules on agreements, the elements of which it contains, will still apply in the relevant parts (clause 3 of Article 421 of the Civil Code of the Russian Federation). The institution of an agency agreement can significantly simplify this situation.

Depending on what the parties determine in their agreement, the agent can act on his own behalf, but at the expense of the principal (in this case, the agency agreement acquires similar features to the commission agreement) or on behalf and at the expense of the principal (in this case, it is close to the agreement instructions).

A distinctive feature of an agency agreement is also its lasting nature, compared to an order and a commission, since the agent undertakes to perform certain actions, i.e. refers to repeatedly repeated ongoing actions of the agent.

The concept of an agency agreement . Under an agency agreement ( agency agreement ), the agent undertakes to perform legal and other actions on behalf of the principal for a fee in his own name, but at the expense of the principal or on behalf and at the expense of the principal, and the principal undertakes to accept everything performed from the agent and pay him a fee.

Legal regulation of the agency agreement . General rules on agency are contained in Chapter 52 of the Civil Code of the Russian Federation. The rules on an agency agreement (Chapter 49 of the Civil Code of the Russian Federation) or a commission (Chapter 51 of the Civil Code of the Russian Federation) may be applied to an agency agreement, depending on how the agent acts - on behalf of the principal or on his own behalf, respectively. These rules apply only on condition that they do not contradict the provisions of Chapter 52 of the Civil Code of the Russian Federation and the essence of the concluded agency agreement.

Since the agency agreement is new in Russian law, it is provided that the law can regulate the specifics of its individual types.

Currently, there are a large number of international acts in the field of regulation of agency relations.

Legal characteristics of the agency agreement . The agency agreement is consensual, paid, mutual.

Essential terms of the agency agreement . The conditions in the absence of which the agency agreement is considered not concluded include provisions on its subject matter.

Subject of the agency agreement . The subject of the agency agreement is the service of performing, on one’s own behalf, but at the expense of the principal, or on behalf and at the expense of the principal, legal or other (actual) actions. Thus, the subject of an agency agreement can also be actions that do not entail legal consequences.

Duration of the agency agreement . An agency agreement, at the discretion of the parties, can be concluded either for a specific period or without specifying its validity period. As a rule, the contract provides that during the term of its validity, repeated and ongoing actions of the agent are performed.

Agency agreement price . The price in the agency agreement is understood as an agency fee. Its size is determined by agreement of the parties. If the agency agreement does not provide for the amount of agency remuneration and cannot be determined based on the terms of the agreement, the remuneration is payable in the amount determined in accordance with clause 3 of Art. 424 Civil Code of the Russian Federation.

If there are no conditions in the agreement on the procedure for paying the agency fee, the principal is obliged to pay the remuneration within a week from the moment the agent submits to him a report for the past period, unless a different procedure for its payment follows from the essence of the agreement or business customs (Article 1006 of the Civil Code of the Russian Federation).

Parties to the agency agreement . The parties to an agency agreement are the agent and the principal. As an agent, they act as capable individuals and legal entities. To engage in certain types of activities, an agent must have a license.

Any capable subject of civil law can act as a principal.

The agent has the right to involve third parties - subagents - in the execution of orders by concluding a subagency agreement (Article 1007 of the Civil Code of the Russian Federation). However, the responsibility for the performance of the contract lies with the agent, who becomes responsible for the actions of the subagent to the principal. An agency agreement may provide for both a prohibition on concluding a subagency agreement and, conversely, an order for the agent to enter into a subagency agreement with or without specifying its specific conditions.

Thus, when concluding an agency agreement, the parties can indicate a specific candidate for a subagent. If they do not indicate it, the principal retains the right to challenge the subagent proposed by the agent.

Unlike an agent, a subagent cannot act on behalf of the principal, i.e. when concluding transactions with third parties, he acts on his own behalf. The exception is the case when, in accordance with paragraph 1 of Art. 187 of the Civil Code of the Russian Federation, a subagent can act on the basis of sub-confidence (see Art. 976 of the Civil Code of the Russian Federation).

Agency agreement form . The law does not establish any special requirements for the form of an agency agreement. The general provisions on the form of the transaction are subject to application (Articles 158-165 of the Civil Code of the Russian Federation). It is not necessary to issue a power of attorney to carry out actions on behalf of the principal; it is enough to have an agency agreement in simple written form.

Responsibilities of an agent under an agency agreement.

The agent under the agency agreement is obliged to:

1. Fulfill the duties assigned to an attorney under a commission agreement (if the agent acts on behalf of the principal) or to a commission agent under a commission agreement (if the agent acts on his own behalf).

In accordance with Art. 1011 of the Civil Code of the Russian Federation, to relations arising from an agency agreement, the rules on a commission agreement are applied, when the agent acts on behalf of the principal, or the rules on a commission agreement, when the agent acts on his own behalf (if these rules do not contradict the norms of the Civil Code of the Russian Federation on agency or the essence of the agency agreement). Thus, the rights of the principal correspond to the rights of the principal or principal, and the responsibility of the agent corresponds to the responsibility of the attorney or commission agent, which have already been discussed in the previous two topics.

2. Do not enter into similar agency agreements with other principals, which must be executed in a territory that fully or partially coincides with the territory specified in the agreement, if this is provided for in the agency agreement.

Such restrictions usually pursue the goal of controlling one or another area of ​​the relevant market (of course, in compliance with the requirements of antimonopoly legislation). At the same time, restrictions cannot be established on the circle of persons - counterparties in transactions concluded by the agent, otherwise a certain category of persons will be excluded in advance from the number of consumers (buyers, customers) of goods, works or services provided with the help of the agent. Therefore, such terms of the agency agreement are considered void (clause 3 of Article 1007 of the Civil Code of the Russian Federation).

If the agent fails to fulfill this obligation, the principal has the right:

• demand termination of the contract;
• demand the application of liability in the form of compensation for damages.

3. Provide reports to the principal in the manner and within the time limits stipulated by the contract.

If there are no relevant conditions in the contract, reports are submitted by the agent as he fulfills the contract or upon expiration of the contract.

The report submitted to the principal must contain: a list of actions carried out in pursuance of the contract; a list of expenses incurred by the agent in pursuance of the contract in the interests of the principal. Unless otherwise provided in the agency agreement, the agent's report must be accompanied by the necessary evidence of such expenses, for example checks, receipts, invoices, etc.

The principal who has objections to the report must notify the agent about them within thirty days from the date of receipt of the report, unless a different period is established by agreement of the parties (otherwise the report is considered accepted by the principal).

If the agent does not fulfill this obligation, the principal has the right:

• demand the return of the transferred property (compensation for its value) in accordance with clause 2 of Art. 405 Civil Code of the Russian Federation;
• refuse to pay remuneration to the agent;
• demand the application of a measure of liability (compensation for damages).

Obligations of the principal under the agency agreement.

Under the agency agreement, the principal is obliged to:

1. Fulfill the obligations assigned to the principal under the agency agreement (if the agent acts on behalf of the principal) or to the principal under the commission agreement (if the agent acts on his own behalf).

In accordance with Art. 1011 of the Civil Code of the Russian Federation, to relations arising from an agency agreement, the rules on a commission agreement are applied, when the agent acts on behalf of the principal, or the rules on a commission agreement, when the agent acts on his own behalf (if these rules do not contradict the norms of the Civil Code of the Russian Federation on agency or the essence of the agency agreement). Thus, the rights of the agent correspond to the rights of the attorney or commission agent, and the responsibility of the principal corresponds to the responsibility of the principal or principal, which have already been discussed in the previous two topics.

2. Do not enter into similar agency agreements with other agents operating in the territory specified in the agreement, or refrain from carrying out independent activities in this territory that are similar to the activities that form the subject of the agency agreement, if this is provided for in the agency agreement.

The inclusion of such a condition in the contract protects the interests of the agent, who essentially receives the opportunity to carry out activities in the absence of competition.

If the agent fails to fulfill this obligation, the principal has the right:

• demand termination of the contract;
• demand the application of liability in the form of compensation for damages.

Termination of the agency agreement.

In addition to the above cases of termination of the contract if one of the parties fails to fulfill its obligations, the grounds for termination of the agency agreement are (Article 1010 of the Civil Code of the Russian Federation):

1. Refusal by one of the parties to fulfill an agreement concluded without determining the expiration date of its validity.

2. Death of an agent, recognition of him as incompetent, partially capable or missing, as well as recognition of an individual entrepreneur who is an agent as insolvent (bankrupt).

The Civil Code of the Russian Federation provides for such situations only in relation to agents - individuals, without affecting cases when the agent is a legal entity, and without mentioning the death, recognition as incompetent, partially capable, missing or bankrupt of the principal. Civil experts note that this gap in legislation requires additional regulation.

The principal reimburses the agent for expenses

One of the main advantages of a contract for an agent is the minimal cost of its execution.

Firstly, the agent does not spend money on purchasing the goods, because they belong to the principal. And if a product sells poorly, it does not cause losses.

Secondly, the principal reimburses the agent for expenses under the contract. It is possible to set a fixed amount of compensation without taking into account actual costs. Another way is to calculate it based on the agent's actual expenses. Then, in order not to go broke on compensation, it is important for the principal to define in the contract:

• what expenses he reimburses (so that the agent does not include his morning coffee in the list) and their maximum amount;
• documents with which the agent confirms expenses.

Is it possible to do without a trial?

If the agent’s act does not contain a crime and the contract provides for the possibility of pre-trial settlement of disagreements, the parties can resolve the problem peacefully: the agent compensates the customer for the full amount of damage, and also pays a fine (if penalties are provided).

Let's consider an example when the principal and the contractor manage to solve the problem peacefully:

An agency agreement was drawn up between the insurance company and the bank, according to which the latter undertakes to sell policies to citizens, keep records and transfer insurance premiums to the principal for each concluded contract.

The agent violated the obligation to transfer insurance premiums, which was discovered by the customer. After submitting a written demand, the bank had to pay premiums and an additional 0.1% of the debt amount for each day of delay to the principal’s current account.

After the agent fulfilled his obligations and paid the penalty, the contract did not terminate.

The agent prepares a work report

A report is a mandatory document with which the agent informs the principal about the work done. We recommend that you define the following conditions in advance:

• report form - usually it is drawn up as a separate document;
• information that the agent includes in the report. For example, what kind of work the agent performed (list of services provided, list of goods sold, etc.) and how much money he spent on it. We recommend that the report also state the amount of the agent’s remuneration;
• The deadline for sending the report is after each transaction or for a period (for example, once a month).

The principal sends comments on the report within 30 days, unless another period is specified in the agreement. Later you won’t be able to make changes and you will have to pay the agent according to the report.

This is not all that can be said about agency agreements. We have planned several more articles about how the agent and the principal pay taxes under different interaction schemes.

Agent report and remuneration

The fact of fulfillment of contractual terms must be recorded by drawing up a report by the agent, accepted by the principal within the agreed time frame (clause 1 of Article 1008 of the Civil Code of the Russian Federation). If a bilateral agreement does not establish a period for submitting a report on the execution of an order, then in the absence of claims from the principal within 30 days from the date of transfer, the report is considered accepted (clause 3 of Article 1008 of the Civil Code of the Russian Federation). To avoid additional tax payments, it is recommended to stipulate in an agency agreement with a legal entity:

• execution acceptance mechanism;
• form and content of the report;
• procedure and deadlines for providing documentation;
• factual evidence of expenses incurred, reimbursed by the principal.

The agency report must contain detailed information about the execution of the principal's instructions. If a commission agreement has been concluded, an example of a report on the execution of an order, in addition to the details of the parties, contains:

• a list of sold inventory items broken down by date for the reporting period;
• the transferred amount of funds indicating the details of payment documents;
• expenses incurred related to the execution of the order;
• the amount of commission with reference to the clause of the contractual conditions.

If the agency agreement does not establish the form of the report, then the contractor may submit a document of arbitrary content to the guarantor. But the document must contain information about actions taken in the course of fulfilling obligations, costs incurred, funds received and transferred. Otherwise, the obligations will be considered unfulfilled by the agent.

Payment of remuneration is provided for by the terms of the agreement and can be made:

• by transferring funds by the principal within a specified period;
• carrying out mutual settlement and transferring payment minus remuneration.

The absence of payment terms in the document in question obliges the principal to make payment within a week from the moment the agent submits a report on the fulfillment of obligations (Article 1006 of the Civil Code of the Russian Federation).

Performer's remuneration

Remuneration for the intermediary is a mandatory condition of the agency agreement. Accrual is made on the basis of submitted reports on work performed. For an individual, a written report is sufficient, but for an individual entrepreneur, in addition to the report, an invoice is also added.

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Document examples

You can download samples and examples of an agency agreement for the provision of paid services using the following links.

Form of agency agreement for the provision of legal services.

Sample agreement for the provision of intermediary services.

Sample agency agreement for the provision of utility services.

Sample agency agreement for the provision of transport services.

Sample agreement for the provision of agency services for finding clients.

Sample agreement for the provision of real estate services.

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