In Poland, commercial agency agreements constitute, so-called, “named contracts”, meaning that they are specifically regulated in detail in the Polish Civil Code (Articles 758 to 7649). It should be noted that the general provisions on obligations provided for in the Civil Code, applicable to all contracts, also apply in respect of agency agreements.
The fact that the provisions of the Civil Code on the agency agreement constitute an implementation of Directive 86/653/EEC, leads to the duty of the Polish courts to interpret them in the way that most fully embodies the wording and objectives of the said Directive.
Article 758 §1 of the Polish Civil Code provides the legal definition of an agency agreement, specifying the material elements (essentialia negotii) of such a contract. Under Polish law, a contract which the parties thereto call an agency agreement may be treated as such only if all the features specified in the abovementioned provisions are met.
The constitutive features characterizing the content of an agency agreement are:
- an undertaking by the party accepting the mandate (the agent) to act as an intermediary in the conclusion of contracts with third parties (clients) to the benefit of the party granting the mandate (the principal), or to conclude such contracts on the principal’s behalf;
- the intermediation is of a permanent nature;
- the principal undertakes to pay the agent remuneration for his acts of mediation;
- a commitment by the agent to act within the scope of his enterprise’s activities – agent must be a professional; and,
- the principal has the status of an entrepreneur.
It is important to underline that the name given to the contract by the parties is not determinative of its nature. This means that, even if the parties – in an attempt to exclude the application of the rules applicable to agency agreements – chose to name the contract otherwise (for example mandate contract, commercial representation contract), this will not exclude the application of the law applicable to agency contracts to the parties’ agreement (provided that the conditions specified in Art. 758 § 1 of the Polish Civil Code are satisfied).
Other important regulations applicable to agency agreements are contained in Articles 98 to 109 of the Civil Code. These provisions contain the rules for the grant of a power of attorney, within the scope of which the agent is entitled to conclude contracts with third parties on behalf of the principal.