(1) An agent for a person who takes it as a profession to act as an intermediary in contracts concerning a commercial enterprise continuously in a certain place or region, or to make them on behalf of that merchant, based on a contract, without having a legal position attached to the enterprise, such as a commercial representative, commercial agent, sales officer or employee of the enterprise. called
(2) In cases where there is no provision in this Section, the provisions of the brokerage agreement of the Turkish Code of Obligations, the commission provisions of the contracting agents, and the proxy provisions in cases where there is no provision in these are applied.
(3) Special regulations regarding areas such as transportation, maritime trade, insurance and tourism are reserved.
While seeking the answer to the question whether agency law will be applied or not, it is necessary to investigate whether the elements stipulated by TTK102 are present in this legal relationship. The commercial law gives the definition and elements of the agency relationship. It does not give the definition and elements of the agency agreement. If even one of these elements is absent, agency provisions will not be applicable.
Element of Independence
The agent should work independently of the trader. Therefore, one should not draw conclusions by looking at the title. Since it is independent from the merchant, the agency’s entire expense belongs to him.
The agency activity must be related to a commercial enterprise.
In other words, the activity of the agency consists of either acting as an intermediary in a contract concerning a commercial enterprise (intermediary agency) or making these contracts on behalf of and on behalf of the owner of the business.
To put it in a broader sense, an agent called a representative agency is a natural or legal person who has the authority to represent directly because it has concluded the contracts made by the commercial enterprises owned by that merchant in the name and account of the merchant. In other words, in this case, it is necessary to look at what the commercial enterprise is. They are independent units that exceed the activities of the artisan business, which are constantly established to provide income.
It is the execution of an activity within a certain place or region.
This is done by agency agreement. The agency carries out its activities in the form of intermediary or contracting in the place or region allocated to it in this way. A specific place or territory may be specified in the contract.
The activity must not be accidental.
The activity must be continuous and a profession must be acquired. The agency relationship is different from brokerage. It is not necessary for the brokerage relationship to be permanent or to acquire a profession. Agency should be both a profession and should be done continuously. What is meant by continuity and acquiring a profession is to carry out the activity in a continuous and sustainable manner by adopting it as a profession. The activity must be carried out within a certain time frame and must not be of an accidental nature.
It must be based on a contract.
In this respect, the activity of the agency is based on a contract with the merchant. The contract is not subject to a form requirement because when the Code of Obligations is examined, it is not bound to a form condition. Therefore, making it in writing is a condition of proof.
Must be authorized to mediate or contract.
With the contract, the agent can be appointed as an intermediary agent. It is not even necessary for the brokerage agent to be registered in the trade registry. Or, according to the agency agreement, B may appoint person A, for example, as a representative agent in a particular region. Then B has given A to contract on his behalf and account. For example, in insurance practice, agents A are known as representative agents, while agents B are known as intermediary agents. The most important difference that distinguishes the intermediary agency from brokerage is in fact that the agency is permanent.
In the event that these elements coexist, the contract will be subject to the provisions of agency law, regardless of whether it is a dealership or distributorship. If even one of these elements is absent, agency provisions will not be applicable.
