24.03.2023

Yazarlar: Sema Çelebi, Oğuzhan Onur

The agency is an "independent merchant assistant" regulated in articles 102 et al. of the Turkish Commercial Code No. 6102 (hereinafter referred to as “TCC”). Merchant assistants, in general, assist merchants operating in various sectors and fields in various matters. In this context, they may be natural or legal persons who provide support and assistance to merchants, especially in the establishment of commercial relations. The agency also provides support and service to the merchant in this context and differs from other merchant assistants within the framework of the provisions regulated in the TCC.

    1.     What is an Agency?

As defined in article 102 of TCC, an agency is a natural or legal person who takes it as a profession to act as an intermediary in contracts or to conclude them on behalf of the merchant, concerning a commercial enterprise in a certain place or region, on the basis of a contract, without having a legal position attached to the enterprise, such as a commercial agent, , sales officer or employee of the enterprise.

As can be understood from the definition above, the agency within the scope of its activity and legal qualification:

·       Does not have a legal position attached to the merchant it provides service to.

·       Performs agency service on the basis of a contract.

·       Performs agency service within a certain place or region.

·       Performs its agency service continuously.

Within the scope of agency service, it may act as an intermediary in contracts concerning a commercial enterprise, or it may conclude contracts on behalf of the commercial enterprise to which it provides agency service.

The above-mentioned issues distinguish the agency from other independent merchant assistants.

 2.     Rights and Authorities of the Agency

The agency has various rights and authorities arising from the agency service it provides. These rights and authorities are briefly as follows:

·       Right to fee,

·       Right to monopoly/exclusivity,

·       Authority to mediate contracts concerning the natural or legal person (“Client”) to whom agency services are provided,

·       Authority to make statements such as warning, notice, protest on behalf of the client (active representation) and to accept such statements (passive representation),

·       Authority to represent Clients in lawsuits and proceedings.

It should be noted that many of the above-mentioned rights and authorities are not regulated in TCC in a "mandatory" way. In this context; with the agency agreement concluded between the agency and Client, it is possible to narrow or expand the scope of the aforementioned rights and authorities to the extent appropriate.

Right to fee is the most natural right that the agency gains as a result of the agency service it provides to the Client. The agency is entitled to a fee during the agency agreement term, as a result of the contracts that it mediates or concludes on behalf of the Client and the transactions of the same nature carried out by the Client and third parties as a result of its efforts.

The fact that entitles the agency to a fee and the time when the agency is entitled to a fee are different from each other. With the conclusion of a valid contract between the client and the third party, the agency is entitled to a fee. However, the time that the agency is entitled to a fee is the moment when one of the parties performs its performance within the scope of the concluded contract. However, these matters regarding the fee may be determined differently by the parties in the agency agreement.

The monopoly right, on the other hand, is a right given to both the agency and the Client as a rule. In this context, while the Client cannot receive agency service from another natural or legal person in the region where the agency service shall be provided, the agency also cannot provide agency service to a third natural or legal person. The opposite of this matter may be decided by the parties.

Since the agency enables the establishment of a legal and commercial relation between the Client and the third parties, the legislator has granted the agency to present and accept statements such as warnings, notices and protests on behalf of Client and to represent the Client in lawsuits and proceedings in order to protect both the Client and third parties who have legal and commercial relations with the Client. This matter is an obligation and also an authority for the agency. It is controversial whether the agency can waive these authorities by agreeing with the Client.

3.     Agency’s Obligations

The agency has also obligations to the Client in addition to its rights and authorities. These rights and obligations are briefly as follows:

·       Provide agency service within the scope of the agency agreement,

·       Protecting the Client’s interests,

·       Keeping and preserving the goods held on behalf of the Client,

·       Informing the Client regarding the necessary matters,

·       Acting in accordance with the Client’s instructions.

·       Taking necessary precautions regarding damaged or defective goods received.

The agency is under the obligation to provide agency service to the Client in the best way possible within the scope of the agency agreement. In this context, it must look after and protect the interests the Client in the contracts it mediates or concludes on behalf of the Client.

The agency may have obligations such as accepting goods and rendering payments on behalf of the Client, within the scope of the agency agreement or according to the conditions of the concrete case. In such cases, the agency should examine the goods on behalf of its client, take the necessary measures against the damage or defects it detects, properly store and preserve the received goods, and render the necessary payments to the third party who has a commercial relationship with the Client, and fulfill its other obligations.

Agency agreement does not result in the agency entering a legal position dependent on the Client. However, the Client has the authority to give instructions regarding the contract to be mediated or concluded on behalf of the Client or sale conditions. In this context, another obligation of the agency is to inform the Client about necessary matters and to act in accordance with the instructions received from the Client.

4.     Agency’s Differences From Similar Establishments

As stated before, independent merchant assistance consists of 4 (four) different concepts: agency, broker, commissionaire and exclusive seller.

These 4 (four) different independent merchant assistants have their own characteristics and qualities. In this context, considering the rights and authorities to be granted to the parties and the debts and obligations to be imposed, the most appropriate legal relation should be established for the concrete case. The main qualities which distinguish the agency from similar establishments are:

·       The continuity of the agency agreement,

·       That the Client does not have the right to unilaterally terminate the agency agreement,

·       That the agency is independent from the Client as a legal position,

·       The ability to perform "intermediary" activities in contracts that concern the Client or to conclude a contract on behalf of the Client.

     5.     Conclusion

The agency is an independent merchant assistant regulated in the TCC and differs from other merchant assistants with its unique qualities.

In this context, each concrete case should be examined in detail in terms of the legal dimensions of the commercial relation to be established with a natural or legal person, the regulations to be applied in possible disputes and the consequences that may occur; and the most appropriate contract for the concrete case should be prepared with the support of expert lawyers.