A brokerage contract is a contract in which the broker undertakes to mediate in the preparation or establishment of a contract between the parties and is entitled to a fee in case this contract is concluded (UK Article 520). Brokerage is a subtype of the proxy relationship. The broker may do the brokerage activity as a profession or not as a profession. In addition, the broker does the brokerage work for a fee. The wage element is the characteristic element of the brokerage contract.
Sole distributorship agreement, on the other hand, is a continuous contract that is a framework regulating the legal relations between the manufacturer (producer) and the sole distrubuter, with which the producer sends all or part of his production to only one seller in return for a price in order to sell it with the monopoly right in a certain region. In return, the sole distrubutor undertakes to take action to increase the availability of these products by selling the contracted products on its own behalf and account. The sole distrubutor acts on his own name and account and therefore does not have any representation authority. They resell the products that bought from the manufacturer to others and earns money on the difference between buying and selling.
There is no definition of the exclusive distributorship agreement in either Turkish Law or the foreign legal system. However, based on the definitions made in the doctrine and some Supreme Court decisions, it is possible to define as follows;
“Exclusive Disturbutorship Agreementis such a contract that has a framework and continuity that regulates the legal relations between the producer (manufacturer/importer) and the sole disturbutor; With this, the producer undertakes to send all or part of his products to only one seller in order to sell them exclusively in a certain geographical region, while the sole distrubutor undertakes to act to increase the availability of these goods by selling the contracted goods on his own behalf and on his own account.”
As a result of this definition, the following elements of the exclusive distributorship agreement can be stated;
· Providing a sales monopoly in a certain region,
· Having a contract that creates a permanent debt,
· The exclusive distrubutor on the one hand, sells the contracted goods on his own behalf and for his own account, and on the other hand, integrates the manufacturer with the distribution network,
· Obligation of the sole vendor to act to increase the distribution and version
When we refer to its legal nature within the framework of these elements; It is possible to say that there is neither a sales contract, a preliminary contract nor an agency contract. On the contrary, the exclusive distributorship agreement is a framework contract that regulates all commercial relations of the parties. Thus, besides granting the exclusive right to sell the contracted goods in the contract region to the sole distrubutor; It also imposes obligations on the manufacturer preventing direct sales in this region and selling goods to third parties in violation of competition law. In return, the sole distrubutor; is under the obligation to increase, develop and accelerate the version of the goods in the contract area. These obligations and rights constitute the subject of the framework agreement between the parties of the exclusive distributorship agreement. On the other hand, the manufacturer has the right and obligation to deliver the goods to the sole distrubutor;, and the sole distrubutor; has the obligation to take delivery of the goods and pay the price. The rights and obligations at this stage are; constitutes the implementation phase of the contract.
Unal&Partners Legal Team
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