Business Representation and Employees in Commercial Law
Business Representation
Representation is crucial for modern commerce. Employers rely on representatives and employees to assist in tasks they cannot personally handle.
Definition of Representation
Representation is a legal relationship where the will of one person (representative) affects the personal or property of another (represented).
Types of Representation
- Voluntary Representation: Arises from the parties’ will.
- Legal Representation: Arises by operation of law.
- Organic Representation: Necessary for companies like corporations, which must have legal representatives (administrators).
Business Personnel
Business personnel fall into two categories: dependent and independent.
Dependent Employees
Dependent employees permanently work within the company, under dependence and subordination, performing or assisting in economic activities.
The General Attorney (Manager)
The general attorney, also known as a commercial factor or manager, is responsible for directing a company, shop, or factory. They are a principal commercial partner of the employer and are regulated by Articles 281, 282, and 292 of the Code of Commerce.
Legal Nature of the Manager
The manager is linked to the employer through a paid service contract. Senior management has a special procedure compared to ordinary workers.
- If hired on behalf of the employer, the manager’s performance outcomes (positive or negative) affect the employer.
- If the manager acts in their own name, even on behalf of the employer, they are liable to third parties, except in the case of an obvious factor.
Requirements and Duties of the Notorious Factor
- Must have the capacity to act as a trader (Article 282 of the Code of Commerce).
- Subject to a non-competition clause. If violated, benefits go to the employer, and losses are borne by the manager (Article 288 of the Code of Commerce).
- Powers are not extinguished by the employer’s death but remain until revoked (Article 290 of the Code of Commerce).
The Singular Attorney
Singular attorneys are empowered for specific tasks, not all business operations. The Code of Commerce calls them “dependent,” although all employees are dependent, including the manager.
Independent Partners
Independent partners do not belong to the company and work without hierarchical subordination or dependency. They are entrepreneurs who collaborate with the employer to attract customers. Their relationship is governed by commercial contracts, not employment contracts.
Types of Commercial Contracts
- Agency Contract: Agents attract and recruit customers. Their compensation is commission-based or fixed.
- Commission Contract: Used for specific, one-time operations. Governed by Articles 244 to 280 of the Code of Commerce.
- Brokerage Contract: Brokers connect parties for a specific operation without contracting themselves. They receive a brokerage fee (percentage of the operation).