(…) It is important to note that the relationship between the principal and the alleged agent should not be governed by an employment contract.
Nathalia Nieto Hernández
The concept of a de facto commercial agency is a complex legal notion that arises when, despite the absence of a formal agency contract, certain elements lead to the consideration that commercial intermediation activity is taking place de facto. In this article, we will explore the requirements necessary for declaring a de facto commercial agency, from both a legal and practical perspective.
Relationship of Dependence
One of the fundamental requirements for considering the existence of a de facto commercial agency is the presence of a relationship of dependence between the parties involved. This implies that one of the parties acts on behalf of and represents the other, assuming the role of intermediary in commercial transactions.
Continuous and Habitual Performance
Another key aspect is the continuous and habitual performance of the alleged agent on behalf of the principal. That is, the activity of commercial intermediation must be carried out regularly and consistently over time, not merely sporadically or occasionally.
Implicit or Tacit Authorization
Although there is no formal agency contract, authorization to act on behalf of the principal may be implicit or tacit. This means that, despite the absence of a written agreement, the principal has somehow granted authorization to the alleged agent to act on their behalf.
Benefit or Profit for the Principal
One of the most relevant requirements is that the principal shall directly benefit from the commercial efforts of the agent, excluding, for example, simple distributors or resellers as commercial agents.
Representation of the Principal
The alleged agent acts on behalf of and represents the principal, assuming the responsibility of representing their interests in commercial transactions. This implies that the agent carries out legal acts on behalf of the principal, such as concluding contracts or conducting commercial negotiations.
Absence of Employment Relationship
It is important to note that the relationship between the principal and the alleged agent should not be governed by an employment contract. The de facto commercial agency differs from an employment relationship in that the agent acts independently and is not subordinate to the principal in terms of schedules or specific instructions.
In summary, for a de facto commercial agency to be declared, it is necessary to meet a series of requirements, including a relationship of dependence between the parties, continuous and habitual performance of the alleged agent on behalf of the principal, implicit or tacit authorization to act on their behalf, the pursuit of economic benefit, representation of the principal in commercial transactions, and the absence of an employment relationship between the parties. It is important to consider these aspects from both a legal and practical perspective when assessing the existence of a de facto commercial agency in a specific situation.
Nathalia es coordinadora del área de litigios y MASC de OlarteMoure y su ejercicio profesional está enfocado en atender litigios de Derecho de los Mercados, es Abogada de la Universidad del Rosario con especialización en Derecho Comercial y maestría en Derecho Corporativo de la misma universidad.
