Which contract to choose (mandate, commercial agency, broker)?

Do you want to use freelancers to distribute your products or services while holding customer contracts?

In this case, you must turn to intermediation contracts: brokerage, mandate, commercial agency, commission.

Freelancers prospect and put you in touch with your customers, up to and including concluding contracts on your behalf.

They are paid by commissions.

This solution has many advantages.

• it can allow you to set your selling prices,

• it allows you to determine your resale conditions,

• it can allow you to prohibit these intermediaries from reselling online to have only a website and national accounts attached to the brand on social networks or on marketplaces,

• it can therefore help limit competition between your brand’s distributors and preserve your margins and your price image,

• it saves you from the fixed costs of employees, including VRP,

• it saves you from managing employment relationships,

• it thus outsources all or part of the commercial function.

If you choose this distribution method, you will have to choose between intermediary contracts, the main ones being:

• Broker:

Intermediary responsible for connecting sellers or buyers with its principals.

Unlike the agent, the commercial agent and the commission agent, he does not make any commitment on behalf of his principal.

This activity is governed by Article L110-1 of the Commercial Code.

• Authorised representative

The agent is a person mandated by the mandate to represent him: that is to say, to act in his name and on his behalf.

The scope of the mandate is defined in the contract: presenting products or services, delivering pre-contractual information, negotiating, concluding a contract, collecting a price, etc. The adoption of minors is governed by the Civil Code, articles 172 to 180. Some agents are said to be of common interest.

They cannot then be revoked without compensation, but the contract may define customer compensation and provide for cases of exclusion.

• Sales Agent

Agent responsible, on a permanent basis, for negotiating and possibly concluding contracts of sale, purchase, rental or provision of services, in the name and on behalf of other companies (called “principals”).

This contract is governed by Articles L134-1 to L134-17 of the Commercial Code and the status of commercial agents includes many mandatory provisions including those relating to the customer compensation due to the agent at the end of the contract.

• Agent

Independent intermediary responsible for buying or selling goods or services in its own name, but on behalf of other companies (called “principals”).

This activity is governed by Articles L132-1 and L132-2 of the Commercial Code and by Articles 1984 to 2010 of the Civil Code.

1/Gouache Avocats helps you determine the criteria for choosing your intermediary contract

The choice you will have to make will depend on your objectives:

• the desired degree of outsourcing: the establishment of a network of brokers will lead you to maintain a commercial service to negotiate and conclude sales or service contracts for example,

• the degree of supervision of the activity of the intermediary that you wish to impose on it and therefore the perception of your commercial policy by your customers,

There may also be constraints, such as:

• the regulation of certain intermediation activities: thus the commercial real estate, credit or insurance broker or the freight forwarder are governed by mandatory rules that must be taken into account,

• sectoral uses, a disruption that is too strong with these uses can lead to slowing down the deployment of the network if it is not,

• the costs incurred by the legal regime of these contracts (for example, deferred liabilities related to the commercial agent’s customer indemnity).

We discuss beforehand to help you define your objectives and prioritize them, and identify your constraints. This step is essential to make the right choice. Our knowledge of distribution will be valuable to you at this point.

2/Gouache Avocats compares your objectives to the characteristics of each intermediary contract that can meet them

We analyze the legal regime of each intermediation contract that can be used with regard to the objectives defined and prioritized together. The one whose plan best meets your distribution needs may be selected.

At this stage, it is our intimate knowledge of the legal regime of distribution contracts that will be the ally of a relevant analysis.

3/Gouache Avocats shares its analysis with you and allows you to make an adapted and documented decision

We give you a clear note, which explains which comparative elements of the regime of each of the studied contracts allow you to achieve your objectives or on the contrary does not allow you.

We do not hesitate to present our analyses in tabular and graphical form to make them effective for you.

We conclude with a recommendation: our choice of contract best suited to your distribution policy.

Our commitment is that of ownership of our analysis by the company for which it is intended: you must clearly understand it and we will do everything for it.

We don’t leave you alone with our advice: together we debrief our analysis and recommendation. We answer your questions to allow you to make an informed decision about the choice of your contract: brokerage, mandate, commercial agency, commission.