The Uniform Act defines three categories of intermediaries, all of which serve to facilitate commercial operations.
Commercial intermediaries have the power to act in a professional capacity on behalf of one or more principals with regard to the conclusion of commercial sale contracts with third parties.
The commercial intermediary, who may be either an individual or a company is by definition a commercial operator and must therefore satisfy the relevant criteria as established by the Uniform Act.
The rules applicable to commercial intermediaries apply where;
- If the intermediary is registered in the RCCM of one of the OHADA member states;
- If he is acting in the territory of a member state; or
- If the rules of private international law led to application of the Uniform Act, even if the intermediary’s principal and/or the third party are established outside the OHADA region.
The general ules applicable to agency are stated to be applicable to relations between the intermediary, his principal and third parties, in addition and subject to the provisions of the Uniform Act.
Customs and usages are equally binding upon all parties concerned as are parties’ own past practices.
The agreement between the principal and intermediary may be made either orally or in writing and may be proven by any means.
N/B: A special power of attorney is necessary if the intermediary is to commence legal proceedings, settle disputes, enter into arbitration agreements, undertake obligations regarding negotiable instruments, sell or pledge real property or make donations.
Effects of the intermediary’s acts
Acts by a commercial intermediary acting on behalf of a principal and within the limits of his powers are binding upon the principal, on condition that the third party was aware or should have been aware that the intermediary was acting in that capacity.
Termination
The circumstances in which the intermediary’s agency may be terminated are listed non-exhaustively by the OHADA Uniform Act to be;
- Mutual agreement between the principal and the intermediary;
- Full performance of the instructions;
- Revocation of the instructions by the principal;
- Resignation by the commercial intermediary etc.
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