Commercial Law – Payment of Commission – Commercial Agency Regulations – Commercial Agent

The case of Heirs of Paul Chevassus-Marche v Groupe Danone and Others (Case C-19/07) [2008], involved a determination on community laws relating to commercial agents. According to Article 7(2) of Council Directive (EEC) 86/653 (On the coordination of the laws of the member states relating to self-employed commercial agents) (“the Directive”):

“A commercial agent shall also be entitled to commission on transactions concluded during the period covered by the agency contract either where he was entrusted with a specific geographical area or group of customers… And where the transaction has been entered into with a customer belonging to that area or group…”.

Article 10 provides as follows:

“(1) The commission shall become due as soon as and to the extent that one of the following circumstances obtains:

(a) the principal has executed the transaction; or the principal should, according to his agreement with the third party, have executed the transaction; or…

(c) the third party has executed the transaction.

(2) The commission shall become due at the latest when the third party has executed his part of the transaction or should have done so if the principal had executed his part of the transaction, as he should have”.

In 1987, the first respondent in this case concluded an exclusive mandate with C. The applicants in this case were heirs to C’s estate. The exclusive mandate concerned the first respondent’s representation of C’s subsidiaries, namely the second and third respondents, in their dealings with the importers, wholesalers and retailers of their goods in a specific geographical area.

Before the termination of that contract, C requested payment of various sums. Such sums included commissions relating to purchases made by two companies established in his geographical area.

The requests for payment were refused on the ground that the purchases concerned had been made from central buying officers or dealers in metropolitan France, an area outside the control of the respondents, and without any action on C’s part.

C then brought an action concerning payment of commission.

The national court made a reference to the Court of Justice of the European Communities. The question concerned a request for a preliminary ruling on the interpretation of Article 7(2) of the Directive. The question referred by the national court was as to whether Article 7(2) of the directive was to be interpreted as meaning that:

“A commercial agent entrusted with a specific geographical area was entitled to commission where a commercial transaction between a third party and a customer belonging to that area had been concluded without any action, either direct or indirect, on the principal’s part”.

It was held as follows:

The court was of the opinion that

· Article 7(2) of the Directive had to be interpreted as meaning that a commercial agent entrusted with a specific geographical area did not have the right to a commission for transactions concluded by customers belonging to that area without any action, direct or indirect, on the part of the principal.

· Article 7(2) merely refers to any transactions concluded during the period covered by the agency contract. There is no requirement that those transactions had to be entered into with a customer belonging to a geographical area or a group of customers for whom the commercial agent was responsible.

· There is not an express requirement for action on the part of the principal, and there is no requirement for action on the part of the commercial agent.

· However, it should be noted that when considering Article 7(2) in conjunction with Article 10, the commercial agent’s right to commission arises either:

§ when the principal has (or should have) carried out his obligation; or

§ when the third party to the agency contract, namely, the customer, has (or should have) carried out his obligation.

· The presence of the principal in the transactions for which the commercial agent could claim commission was indispensable. It therefore followed that the commercial agent could claim commission. The commercial agent’s claim for commission could be made on the basis of a transaction only to the extent that the principal had acted, directly or indirectly, in the conclusion of that transaction.

· As a result, this meant that it was for the national court to establish:

“Whether or not the evidence before it, assessed in the light of the aim of protecting the commercial agent and of the obligation on the principal to act dutifully and in good faith, allowed it to establish the existence of such action, be that action of a legal nature”.

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Where Does Your Real Estate Commission Fee Go – Why is The Commission so HIGH?

Many who have bought and sold properties through Realtors numerous times; even many real estate agents themselves, don’t know where the commission money goes. After all, when a property sells for hundreds of thousands of dollars and the commission is tens of thousands of dollars, it seems like there is a terrific amount of money charged as commission — and there is.

Even many attorneys, who have spent a decade or more in expensive colleges, fought to get through the Bar exam, and then spent years in their profession — seem concerned that the commission fee is far larger than the attorney fee when all the fees are paid at settlement.

Let’s start with the part that few real estate agents understand. It costs the real estate company they work for, between $19,000 and $45,000 per year for each agent to have a license, desk, and the use of company building, parking, real estate, taxes, insurance, utilities and professional support services — whether they sell anything or not. Since the real estate brokerage commission is split between the company and the agent, an agent must make three to six thousand dollars every month in commissions for the company to break even on that agent with the company share of the fee. And, most importantly, the less productive agents in the office raise the cost for everyone. The other agents therefore, must each earn more to carry the share of the less productive. Many agencies will ONLY allow high quality, top producing agents to work at the company, so that the less successful agents don’t pull down the average income of the company investment.

The total commission is split between the listing company and the listing agent ; and the selling company and the selling agent. Usually the commission is split four ways, sometimes it is more. Splits are arranged within each company and for each agent; sometimes there are numerous different percentages and split arrangements in each office.

The company part of the commission is spent on office rent or mortgage, taxes, property insurance, maintenance, signs, radio and TV advertising, bill boards, magazine and newspaper ads, cleaning, supplies, phones, paper, desks, utilities, legal fees and legal insurances, management and support staff as well as numerous memberships, dues, legal fees and expert professionals. Many companies also pay a fee to a franchise company or home office for the right to use the company name. Fees are also paid to regional and national home offices to defray national and regional advertising, management, staff, etc.

In the final analysis, an office that has 10 licensed agents must require those agents to bring in at least forty to seventy thousand dollars in commissions every month to keep the office bills paid!!! I don’t know any real estate agents who actually understand or believe this, unless they have personally been responsible for office expenses for a year or more. Responsible, meaning writing the checks out of an account that costs THEM money. Even then it’s hard to understand how it all adds up to such a huge figure, but it does. Offices that earn less than these amounts per agent are disappearing fast, few remain as it is.

Computer purchase, maintenance, training and software expenses are now one of the larger expenses. Many offices feel squashed financially, by the financial pressure of adding the purchase of computers, printers, digital cameras, and the maintenance, networking, repair, software and constant management of computers to the already high cost of doing business. In fact, there are even a few of the larger companies who specialize in purchasing other real estate companies who can’t keep up with the expense and responsibility of this digital age. Any company or agent who is not keeping pace with digital realty and digital real estate, is not likely to be around much longer.

More and more people rely on the Internet to pre-shop for real estate. You know that. You are one of them and we welcome you to our site.

The purpose of our Web Site is to allow you to educate yourself and pre-shop for real estate before you call us. Let us know if you want us to have anything else on our site for you. We’ll listen! As the Internet becomes the favored tool it is also the most important tool for buyers — radio, print and sign ads become less workable. Smart sellers now want to see what a Realtor is doing on the web before they choose which Realtor to list their property for sale with.

Advertising and marketing expenses have grown tremendously over the years. For instance, when I first got into the business, thirty years ago, I started out helping to manage a real estate, building and developing company. At that time, over 60% of our phone calls came from signs on the property. Also at that time, bulk mail cost an average of thirty cents a piece to create, print, post and send and our response rate was often 3% or more!!! Now less than 10% of our calls come from signs on the property. Bulk mail averages over a dollar a piece and mail response is far less than half of one percent. In fact according to one national Realtor’s marketing research team, real estate mailings now range in response from one in a thousand to one in three hundred. The best results costing the most to obtain because of expensive mailing pieces with full color, pictures, etc. One recent survey showed that average cost per resonse to a mailing was $2,000 – whether it was a lot of cheap postcards or fewer nicely printed color pieces.

Since 1971, I have studied and researched marketing and sales via schooling, reading and keeping good records of expenses and results. Thirty years ago the average cost of newspaper advertising to get a phone call was seven dollars. One in every ten calls coming to a top agent, resulted in an appointment. One in five appointments resulted (for a top agent) in a sale! Of course these were averages based on the best advertising, telephone and selling techniques that were available. Often the averages were not as good in other companies or for other agents. So the average cost of a sale using just print ads was about $350 thirty years ago. For my office of 50 agents in 1979, the average print, signage and bulk mail advertising cost had risen to $500 per call.

Now the average cost of one phone call from a print ad is from two thousand to five thousand dollars and that is growing by the month! So even if one could get one in ten calls to result in an appointment, and one in five appointments to result in a sale, the cost of advertising per contract would be phenomenal.

The nicer the property, the more attractively priced it is or the better it is located the more response the ad will get. Luckily for print ad salespeople and newspapers, few Realtors keep records of what advertising costs and results are. Singage is still a factor in obtaining calls and used to be the most cost effective. Therefore many Realtors will seek to get a listing in a hot area, no matter what the listed price, just to get a sign on the property! Can you blame them?

Print ads are done mostly to please the seller. After all the seller wants to see something tangible as proof that the Realtor is spending some money before that big commission is paid out at settlement. We certainly can’t fault them for that either, can we? Interestingly enough, those sellers who price their property highest for what it is and who are located farthest from where the most buyers want such a property, are quite often the ones who most want to see their property advertised expensively!!! In the case of an overpriced property that is not well located — thousands of dollars can be spent in advertising with not one phone call resulting! It’s just part of our business and always has been. Ironically those sellers who have property priced the highest for it’s location and want the most advertising, are often the ones who want to pay the least commission too.

You may find this all unbelievable! It is! I’ve been doing this business all my adult life, going to courses every year, working in the business in many parts of the country as a property specialist — and I still can’t believe the costs and conditions of this business. I am amazed every day by all this!

Each company pays their agents differently but the overall or gross commission as it is called is split in some fashion between the company and the agents. The expenses are split too. The most productive agents usually get a larger split of the commission, relative to the company. Some companies offer top agents the right to rent office space, usually at least twenty thousand dollars a year, and keep all the commission! And, top agents almost always spend a far larger percentage of what they earn for advertising, marketing, education and other business expenses that are designed to bring them future sales and income.

The best agents, the best ones for the seller to have, are those who do everything possible to let all the rest of the Realtors in the area know everything possible about the property they have for sale so that other Realtors can try to sell it too. When two Realtors from different offices are involved in the sale the commissions are split in half again. Typically each of the two companies involved would split the commission and then each of them would split with the agents involved. Often there are other commission splits payable as well to a referring agents; an agent who referred the listing or one who referred the buyer. To give you an idea of what all this means, when I averaged all the commissions I made over the last several years I averaged three quarters of one percent of the sales price for the properties I sold – BEFORE expenses! Now you can see why we all try to sell millions of dollars of property each year!

In most areas there is another expensive service that the companies and the agents use — the Multiple Listing Service or MLS. This is where all the agents have agreed to put everything they have on a centralized and searchable computer so that all agents can have access to all properties. Once you choose your Realtor that person can access everything in the central computer files if they are a member of the MLS. Some of the smaller companies are not members because of the cost.

From the proceeds of commissions earned by the sales and listing agents, they then pay for their auto expenses, MLS fees, annual county, state and national Realtor dues, commercial licensing fees, business licenses, electronic lockbox keys, advertising, insurance, legal fees, computer related expenses, phone bills, etc. In the final analysis a Realtor who sells two million dollars in real estate a year is usually working diligently and effectively for his clients for only average earnings in area where she lives after all these expenses. And there are others; client gifts, professional dinners and luncheons, Chamber of Commerce dues, and numerous charities who consider that Realtors are the most likely to donate heavily to all the charities… since they have so much money.

Selling Real Estate is a life style and profession most of us would not trade for anything. And there are some of us who have made a nice living over the years at this wonderful job. It’s all about helping others. If we do it well, we are paid well, and if we do it very well we are paid very well! Happily I have been working as a Realtor since 1972 and I LOVE it.

We know that for us we have the best job on earth and we do it our way. We use primarily the modern tools of the Net, Multiple Web sites, all the latest devices and techniques, MLS, several computers, as well as selected traditional mailings, some print ads and several professional assistants all to help our clients better and faster!

May we help YOU? We hope so! And, we hope to get paid when we do!

Copyright 2000-2005 by www.JodyHudson.com

The 7 Best Ways to Legally Make Money Online

There is plenty of advice available for people who want to legally make money online. However most of it, unfortunately, is offered by people selling ridiculous get rich quick schemes, so called instant money makers or, even worse, scams. If anybody tells you that making money online is “effortless” or “quick” then alarm bells should be sounding for you. If you seriously want to legally make money online then you need to be prepared to put in the necessary work.

Nonetheless the rewards for getting it right are massive. Not just in terms of your income but, perhaps more importantly, in terms of the improvement in lifestyle that comes if you can work from home. Initially you may have to work harder to start your business but, once it has, you could work as little as 4 hours a day in return for a fantastic improvement in your quality of life.

So what are the 7 best ways to legally make money online. Each of the 7 steps outlined offer a basic introduction to the most effective ways generate an income for yourself and your family working with your PC from your own home. Each has the potential to provide anything from a little extra cash to a very healthy full time income. They are not presented in any order of preference and it should be noted that most successful internetpreneurs use most, if not all of these, techniques to legally make money online.

1. Affiliate Programs: – Fundamentally, if you act as an affiliate it means that you advertise others products in return for a commissions on any sales made by a customer who has arrived at the product via a link from your advertisement. This way to legally make money online is best achieved by a placing advertisements in the form of banners or contextual links on your website or blog. You will need to learn a little about web design or blogging. Once your site or blog is designed you can place your affiliate links on them and, if done correctly, will soon start earning some commission. You don’t even need a website as you can use “landing pages” such as Hubpages or Squidoo lenses to advertise your affiliate products. Furthermore some products don’t even require that you make a sale. They ‘convert’ (meaning pay commission) for you sending them possible customers which they can then promote to (often known as ‘leads’). However the best commissions are invariably earned for referrals that result in direct sales.

You can find affiliate programs for products in many ways. Search engines, directories, forums and social networks are but a few of the places you could find affiliate programs but perhaps the best places to start are the affiliate networks such as ClickBank, Commission Junction or Linkshare. Affiliate payouts can be extremely high and it is not unusual for successful internetpreneurs to earn substantial incomes this way.

Sounds easy to legally make money online with affiliate programs then? But of course it is not that simple. It’s totally useless having a great site or blog with high quality affiliate links if no one is looking for or visiting your links. No traffic equals no sales and wasted effort.

In order to succeed with affiliate programs you have to understand the marketing process. From ‘keyword analysis’ through ‘product selection’ to ‘link building’ a clear affective and powerful marketing strategy is essential if you are really going to legally make money online. It will take some time and effort to master marketing techniques but, with the help of some of the excellent affiliate training products that exist, there is no reason why you can’t earn a fantastic online income with affiliate programs.

2.Information Products: – Information products are digital and therefore have minimal storage and delivery costs. Once designed and produced you overheads thereafter are extremely low and sales prices represent high percentage profits. Information products can be Ebooks, software, training videos or anything else you can download. There are many ways to sell and to market digital products from placing them on your own sites or blogs to marketing them on via your own affiliate program via affiliate networks such as ClickBank.

Many people think it’s impossible for them to produce a product that anyone else would be interested in let alone want to buy. However everybody possesses knowledge that others want. For example I don’t know how wire my house and am terrified to even try because I lack the knowledge required to do so. So whats my solution? I need to have the right information in order to learn how to wire my house. Needless to say I would be willing to pay to have that information. So if you are an electrician I would be willing to buy that information from you. If you then consider the massive scope of the Internet market place you can start to see how you can legally make money online selling information products based upon the knowledge you already have. No matter if your an electrician, a cook, a successful mum or even a bus driver you know something other would pay to find out.

You don’t even need to be a writer, you can commission a ghost writer, or you can develop your own software or even produce your own instructional video. Do your research, read product reviews and look at other top selling products. Get this way to legally make money online right and the rewards can be very high.

3. Google Advertisement: – In the same way that you can place banners or contextual links for affiliate programs on your site, blog or landing page (well some of them anyway) you can also place ‘Google AdWords’ advertisements. Signing up for AdWords is very simple and is entirely free. Once you have set up your site or blog etc, and it has been accepted by Google, you can go ahead and design your AdWords ads. The advantage of these ads is that they will be automatically targeted to your sites content by Google. Each ad will offer a link to related products offered by people who use Pay Per Click advertising (PPC) on Google. In the same way that affiliate programs will pay out for successful conversions, Google will also split it’s commission with you for the same. Whilst this is unlikely to be as lucrative a way to legally make money online as pure affiliate programs it is a valuable addition to any internetpreneurs income.

4.Online Store: – Ask most people what they think will be a good way to legally make money online and they invariably suggest some sort of shop or Internet trading site. Whilst selling physical products can earn you a fantastic income initial set up costs can be high and the chances are that you will be competing against some well established competitors. There are a number of automated store building solutions and “turn key” websites that mean you need to know little about web design or hosting etc in order to set your store up (though you will probably be far more likely to succeed if you do). Furthermore there are some excellent free order processing and inventory solutions such as PayPal that you can use for processing orders on your site once it is set up.

Unlike selling digital products you have to consider how you are going to store your stock, deliver to your customers etc. If you are intending to sell a broad range of products you need to secure a supplier. Buying wholesale may improve your profit margins but you need to be aware that the percentage markup is usually quite low on most products. Therefore you need a considerable volume of sales in order to make a good return on your investment.

Perhaps a better approach is to identify a ‘niche market’ and sell exclusively to that. Commercially speaking a niche can be said to be any smaller segment of a broader market. For example if the broader market is ‘Car Products’ then a niche market could be ‘classic car parts’. However, you may find that this is too broad a market to compete in and so may consider an even more specific niche such as ‘classic car tires’ or ‘classic car electrical components’. By identifying ‘niche’ markets in this way you will reduce the competition but your market will be smaller. The trick is to find a niche that is small enough to compete in but has sufficient demand for you to legally make money online.

There are plenty of wholesale directories on the Internet that offer access to products at cheap wholesale prices. Unfortunately this is a sector of the market that attracts some real scam artists so you need to be very careful about “paying for information” as many so called wholesale directories are simply lists of links to wholesalers (many of which turn out to be dead). Nonetheless, if you are careful, read plenty of reviews and ask others who they’ve found to be effective suppliers in your chosen “niche”, you can find some excellent wholesale directories, find some good suppliers and legally make money online by reselling the products to the customer via your online shop.

However, it’s little use finding a great niche product line and building your website store unless you can attract customers. In order to do so you will need to successfully market your store and products just as you would with affiliate or digital products. Once again an effective marketing strategy is central to your success.

5. Auction Sites: – Chances are that most of us have either sold or bought something off an auction site, such as eBay, at some time or another. If you do want to legally make money online then selling your own product or reselling for others through an auction site can be highly rewarding. Many of the top eBay traders (the ‘powersellers’) are full time and , if you want to know how to make money this way, then simply check out some of their eBay stores and products in order to get an idea of what is achievable.

However selling through an auction site introduces further set up costs which need to be carefully considered as part of your business plan. It’s important to carefully read their fee structure and listing policies before attempting to sell your products through them. Remember your profit margin per item may be reduced but the volume of sales you can expect could be greatly increased due to the customer base and brand loyalty that sites like eBay already have.

Many of the more successful sellers combine their Auction site stores and trade with their other online stores. By combining you efforts in this way you gain an increased exposure for your products by ‘cross promoting’. Again it will be important to to identify a niche market for your goods on the auction sites and the same marketing methods need to be used in order to gain custom.

6. Membership Sites: – As we’ve already discussed if you have specialist knowledge or expertise, or if you offer a unique niche product or service then you can probably legally make money online selling that information or expertise. A membership site charges a recurring ‘subscription fee’ to those members who wish to join. The successful ones offer their members access to specialist niche products and information that is difficult to find elsewhere and has continued value.

For example let’s assume that you you are an expert (or know someone who is) on dog training and breeding. You could create a subscription site that offers member access to all the latest dog training products and breeder lists. You could create an exclusive community with access to forums; offer dog training videos; breeding lists and instructional products. For those people who are avid dog trainers and breeders such a site would have great value and the chances are that they would be happy to pay a modest monthly subscription to be a member.

Marketed correctly (there we go again) membership sites can be an extremely profitable way to legally make money online. Of course whilst you are building you list of members you are also developing a valuable list of people who are interested in your chosen niche market. These people may well be interested in other niche related products you have to offer.

7. Newsletters and Ezines: – If you seriously want to legally make money online then there is an idiom of marketing you should always bear in mind. The saying the ‘money is in the list’ is central to marketing. If you build a large list of subscribers, that you can regularly send offers and promotions to, your business will soon grow. The people on the list represent your best and most valued customers because they have already shown a predisposition towards what you have to offer by opting in to your list in the first place . Once they have given you their email detail you can begin to circulate your Ezine or newsletter. Your Ezine needs to continually bring your customers high quality content and offers or they will soon lose interest. However, providing that you do, you will also be able to market your own products and affiliate products to your list members.

Conclusion: – Each of the 7 methods introduced here offer the opportunity for you to legally make money online and each has the potential to provide you a substantial income. These approaches are by no means intended to represent an exhaustive list of methods. The Internet is a dynamic and rapidly developing market place and the best online businesses are able to rapidly adapt to these changes.

Inevitable all of us are better at some things than others and most successful internetpreneurs specialise in certain aspects of online business. For example some are practically full time affiliate marketers whilst others predominantly operate online stores and auction trade. Generally speaking most are successful because they combine many, if not all the, the methods outlined here as part of their business plan.

However all have one thing in common, they understand how to market. Building stores and excellent web sites with valuable content is part of the way to earn online but without customers (traffic) you can not succeed. Therefore it’s essential that you spend some time researching Internet marketing techniques and strategies. The best plan is to find someone that’s successful and learn as much from them as possible. Keep learning until you feel confident that you understand the basic marketing principles. Test your theories and look for profitable markets and niche products that offer you high profit potential.

Thoroughly research and plan you marketing strategy and, whatever method you favour, you will be able to legally make money online.