Intermediation, or intermediation services, is arguably the most important concept in agency law. Interestingly, the Civil Code does not define it. Nor do judgments or legal publications provide clear-cut answers.
🔵 Broadly speaking, intermediation services are activities an intermediary undertakes to bring about a contract between the principal and a customer.
This general description can make it difficult in practice to determine whether a particular provider’s services constitute intermediation under agency law. Case law and commentary nevertheless identify activities clearly falling within the concept.
The most common examples are:
➡️ finding and preliminarily vetting customers, for example by gathering information and checking solvency;
➡️ presenting the business’s offer, including product features, samples or contractual terms;
➡️ collecting offers or enquiries from prospective customers;
➡️ encouraging customers to enter into contracts;
➡️ participating in negotiations and helping the parties agree terms;
➡️ and, of course, concluding contracts with customers on the business’s behalf where the intermediary has the necessary authority.
The intermediary need not perform all these activities. Often just one is sufficient, provided it contributes to a contract being concluded.
Does this mean that merely informing prospective customers about products or services, or passing on offers, always constitutes intermediation? Not necessarily. It depends on the context, the other activities the intermediary does or does not perform, and the parties’ intentions. Each case requires an individual assessment of its actual circumstances.
In any event, if you instruct someone to perform activities from this list, there is a strong likelihood that you are commissioning intermediation services and, if those services are paid and continuing, doing so under an agency agreement.
