by Dr Robert Lewandowski, attorney at law (radca prawny) at Derra, Meyer & Partners in Warsaw
Under Polish agency law subject to regulations of the Civil Code, both parties: principal and agent, can agree that the agent will receive an additional commission – a so-called del credere commission - if a del credere agent undertakes to guarantee that the client fulfils his/her obligations towards the principal (for instance satisfying bills).
Polish law has introduced many limitations as to the scope and applicability of this clause because it bears many risks for the agent. First, a del credere agency agreement shall be concluded in writing, otherwise it will be deemed void. Second, the guarantee of the agent can only be agreed on a certain type of transactions with certain (stipulated) clients which have been procured personally by the agent or signed up by the agent on behalf of the principal. That means that a del credere agreement does not apply to transactions with an unlimited or unknown number of clients and both the aforementioned limitations are compulsory and cannot be altered or waived between principal and agent. However, when the agent voluntarily assumes the burden of performance of a third party within a del credere agreement, then the agent is liable in the event of unfulfilled performance by the third party and the agent’s liability seems also to exist in the event of non-performance of a third party. It should be stressed that the Polish regulations of a del credere agency agreement do not foresee any cap to the amount of the agent’s liability towards the principal for the non-performance of a third party and this may lead to an unjustified burden on the agent and a breakdown of this burden should be made within the agency agreement. Finally, it should be stressed that a del credere agent only comes into force if the client fails to perform but it is not applicable in the case of non-performance of the principal.
For further information please contact Dr. Robert Lewandowski at the following email address: r.lewandowski@derra.pl
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