Agent substitution and subcontract

• Author: Dana Lucia Tulai
• Position: PhD in Progress, Professor Assistant, 'Babes-Bolyai' University, Cluj-Napoca, Political Economy Department
• Pages: 54-58

AGENT SUBSTITUTION AND SUBCONTRACT

Dana Lucia Tulai*

Abstract

The attempt to disclose the jur idical nature of agent substitution has

led to the outlining of two opinions in the classic law doctrine: subcontract

or assignment of contra ct. However, we find it worthy of discussing a third

hypothesis, that of a multiple, „sui generis” identity, since we consider the

unitary identification of various cases of substitution to be inaccurate.

Keywords: agent, substitution, subcontract, assignment of contract.

Introduction

Reading of certain juridical writings could lead to the conclusion that

agent substitution is simply a typical case of subcontract, a”subagency”

contract, to be more precise. It is true that this operation, which is always

secondary to the initial agency agr eement, shows some apparent subcontract

features. Therefore, we consider a comparative study between agent

substitution and subcontr act to be called for, in order to check if the

comprehensive hypothesis of agent substitution match the subcontra ct

identification.

Agent Substitution and Subcontract – Doctrinal Similarities and

Case Law Withholdings

Traditionally, legal doctrine binds contractor substitution to the

theoretical concept of subcontract. The intermediary contractor entrusts a

third party (the subcontractor) with performing a part of their obligations

towards the primary contractor, which supports this identification of agent

substitution as a subcontract. Therefore, most authors assimilate agent

substitution with the subagency notion. For example, Mr.Philippe Petel,

Professor at the Faculty of Law in Montpellier, identifies in well-defined

terms agent substitution with subcontract, pointing out that it could be

compared to private subenterprise: „agent substitution is for the agency

contract the same thing that private subenterprise represents for the private

enterprise contract.”1

Modern doctrine is following in the steps of an earlier view2, which

was dominant in the late 19th century – early 20th century legal writings,

*PhD in P rogress, Professor Assistant, „Babes-Bolyai” University, Cluj-Napoca, Political

Economy Department, dana.tulai@econ.ubbcluj.ro

1 P.Petel, Le contrat de manda t, Dalloz, Paris, 1994, p. 70.

2 G. Baudry-Lacantinerie, A.Wahl, Traite theorique et pr atique de droit civil, TomeXXIV,

Des contra ts aleatoir es, du mandat, du cautionnement, de la transaction, Sirey, Paris, 1907,