الوكالة التجارية الحصرية في الفقة الإسلامي والقانون اليمني :

Abstract

Abstract This study explored the sole agency as a system in which the role of the agent is not restricted to attracting the costumers only, but also goes beyond to make contracts with them on behalf of the principal based on the continuous agency agreement. Sole agency is considered a quite modern legal system where it may bring up some legal problems in terms of adaptation or its resemblance to other legal systems. This study aimed to assess and develop the system of sole agency in Yemen through identifying the existing weaknesses and discussing the applicable treatments by comparing them to the Islamic jurisprudence provisions and the legislations of some other countries such as Sudan and Egypt. Furthermore, the study investigated the essence of sole agency through defining it, determining its characteristics, distinguishing it from other systems, and highlighting its importance. Since sole agency has become one of the commercial agreements widely and constructively spread, many legislations has undertaken to regulate its substantive provisions and procedural provisions with special rules. However, the Sudanese legislator has not specified its substantive provisions with special rules which means that it is subject to the general provisions of authorization although commercial agency and business have their own nature. In other words, what may be appropriate for the relations of civil nature doesn't have to be necessarily appropriate for the relations of commercial nature, therefore, allotting the same provisions for commercial agency and authorization should be rethought, because the agent and the principal are professional traders while the authorized person in regular civil case does it voluntarily and not professionally. The study also showed that the concept of sole agency is not existent in the Islamic jurisprudence, however, Islamic jurisprudence is based on granting favor to advantages over disadvantages. So you may find many deals legitimized on this basis in Islamic jurisprudence. Since the commercial agency is generally bringing benefits to people and it differs from regular authorization only in its frame, Islamic jurists found commercial agency generally legal although there are some differences in their opinions regarding its details. It was also clear that in practical situation there are two kinds of sole agency. The first kind is represented by exclusive agency contracts where the principal authorizes the agent exclusively in a specific geographic area in which the agent practices his activity on behalf of the principal to promote the principal's products and sell them in return of a certain payment. The second س kind is represented by exclusive distribution. This latter kind is not considered exclusive agency, because the agent sells the products he buys for his interest, and therefore he bears marketing risks. In spite of that, most of sole agencies are of the latter kind. In addition, the study clarified the influences of sole agency through mentioning the obligations of the involved parties, and the guarantees and termination of agency. For instance, each party in commercial agency agreements has the right to terminate the agreement at his own will, and this doesn't comply with the professionalism of commercial agency nature. Therefore, some legislations consider the sole agency as an agreement made for the joint interests of the two parties. Subsequently, when terminating the agreement, protective standards must be taken into account to ensure that no party exploits his right of termination to harm the other. So, termination has to be justified with a reasonable cause acknowledged by law and commercial custom otherwise a compensation must be made to one party. In some cases the entitlement to such a compensation raise many problems. It was also apparent that there are many weaknesses in the substantive and procedural provisions of sole agency, including restricting the regulation of the agency practices to the foreign companies only and the unavailability of sufficient protective laws for the sole agent. As a result, this hinders the development of commercial agencies and impacts their contribution to the national economy. Finally, the study reach a number of results, including: the provisions of the sole agency in the Yemeni law are generally consistent with the Islamic jurisprudence provisions except the provisions related to the interests of receivables of the principal from the day of requesting them, and the interests of receivables of the agent paid for the implementation of the agency. The study recommends that the substantive and procedural provisions of sole agency should be generally revised in order not to be limited to foreign agencies, and to ensure the development of commercial agency and the activation of its role by: determining the necessary guarantees for the agent to keep his rights, providing the suitable protection for the agent due to his weakness in case of retirement, and acknowledging his right in compensation regarding the factor of customers in any case of agency termination