Broker (Courtier) vs Commercial Agent: Selling in France

What is a broker under French law?

The broker (courtier) is a merchant intermediary whose task is to bring together a supplier — the principal, or donneur d'ordres — and a client who might buy its products, and who does not itself take part in concluding the operation. Brokerage is an act of commerce (Article L 110-1 of the Commercial Code), even where its subject-matter is civil, so the brokerage contract may be proved by any means. The broker exercises its activity in complete independence, but for the account of the party that instructed it.

The defining limit is that the broker only favours the conclusion of a contract; it does not conclude it. The contract that results is formed directly between the supplier and the buyer, without engaging the broker on either side — the mirror image of the commission agent, where the projected contract is concluded between the commission agent and the buyer without engaging the principal. Because its object is so narrow, the broker's obligations are correspondingly light, and the relationship is, in principle, revocable at will (ad nutum).

Broker, commercial agent, commission agent: the distinctions

The three intermediaries are easiest to tell apart by what they do with the projected contract. The commission agent concludes it, in its own name. The commercial agent negotiates and, where authorised, concludes it, in the principal's name. The broker does neither: it introduces the parties so that they may contract with each other. It follows that the broker is not a common-interest mandatary — its object is only to favour a conclusion, not to conclude — and it is not a commercial agent.

That last distinction has, however, become more delicate. The courts now take a more generous view of the commercial agent, admitting even an agent that lacks the power to conclude and holds only a limited power to negotiate. The frontier between an agent with a thin negotiating role and a broker that does a little more than merely introduce can therefore be fine. The dividing line that holds is function: the broker signals and connects; the agent has a permanent mandate to negotiate in the principal's name. Getting the characterisation wrong matters, because the agent brings a mandatory statute and a termination indemnity that the broker does not.

Special categories of broker recognised by the Code

Alongside the general brokerage described here, certain brokers are specifically contemplated by the Commercial Code and carry their own rules. The sworn commodities broker (courtier de marchandises assermenté) is one; the online auction broker (courtier aux enchères en ligne) is another, and it must be distinguished from the auction mandatary. A derogating regime, departing from the ordinary law of brokerage, has also been created for certain brokers qualified as hosts (hébergeurs), who must in turn be distinguished from the simple referencer.

Online auctions illustrate why the distinction matters. Article L 321-3 of the Commercial Code defines both online public-auction sales and online public-auction brokerage, subjecting their author to distinct obligations and liabilities. The characterisation turns on the mechanism: online auction brokerage implies an activity of brokerage rather than mandate, and a genuine auction leading to the automatic conclusion of the contract with the highest bidder. Where the price is fixed by the play of bidding, the sale or supply is concluded directly between the offeror and the party seeking the goods, so that there is, in law, no auction sale but an auction brokerage. For a foreign operator running or using such a platform, identifying which category applies is the first step, because the obligations and the liability differ with it.

What the broker owes: information and neutrality

Because it does not participate in the sale, the broker is not, in principle, a guarantor of the performance of the contract it seeks to bring about; it owes no warranty or safety obligation under the sale, in which it plays no part. Its obligation is essentially one of information — and, distinctively, that duty is owed to both sides, the supplier and the potential buyer, because both are going to contract through its introduction. The broker must inform each accurately and precisely about the potential counterpart it presents, about the terms of the envisaged operation, and about any personal interest it may have in the deal alongside its brokerage. The relationship is thus analysed as two contracts — one with the supplier, one with the client — a group of contracts revealed by the brokerage operation.

Where the broker acts for two principals at once, one buying and one selling, it must ensure the neutrality of its intermediation. Beyond the core duty of information, a broker may take on further obligations by usage or by particular agreement — secrecy, a non-compete, a del credere, or even a mandate, in particular a mandate to recover the sums due from the buyer — and some of these are designed to produce their effect after the brokerage itself has ended. But these are add-ons; the broker's own role remains that of the impartial introducer.

It is worth stressing that the roles are not mutually exclusive: nothing prevents a broker from also being entrusted with a mandate, in which case it wears two hats and its duties are read cumulatively. That flexibility is a practical convenience but a legal trap, because the added mandate is one of the routes by which a relationship intended as brokerage acquires the features — representation, a power to conclude, the development of a clientele — that pull it towards the agency regime. Where the parties want the broker to do more than introduce, the safest course is to say so expressly and to understand which additional regime each added obligation brings with it, rather than to let the roles blur.

The brokerage: when the broker is paid — and when it is not

The principal must remunerate the broker, though in practice that cost is often shared with the counterpart introduced, or even placed entirely on it. The remuneration — the courtage — is justified by the introduction the broker made, and this has a sharp consequence: where the supplier and the third party were already in a relationship, the brokerage has no counterpart and is void. The parties may, however, provide by contract that the broker will be paid for the new operations concluded between the supplier and the client it introduced. Because the brokerage rewards the introduction rather than a continuing service, it is also common — and lawful — for the burden of paying it to be shared with the counterpart the broker presents, or placed entirely on that counterpart; the broker's remuneration does not have to come from the principal alone.

The amount is a percentage of the value of the products sold in the operation, or a lump sum; it is freely fixed by the parties or, failing agreement, by the court, which may also reduce a brokerage that appears excessive against the broker's actual efforts. The brokerage is due once the projected sale has been concluded, whether or not that sale is then performed — though for a term sale it is owed only after the accounts are finally settled. Two negatives complete the picture, and both sharpen the contrast with the other intermediaries: unlike the commission agent, the broker has no privilege securing payment of its brokerage; and, like the commission agent, it has no end-of-contract indemnity.

The supplier, for its part, is not obliged to conclude the operation with the third party the broker presents. But if the offer the broker was charged with transmitting is firm and definitive, its acceptance by the third party should conclude the contract with the supplier — all the more so where the broker was given the power to conclude, or where a usage perfects the sale by a simple letter of confirmation.

No termination indemnity — and why

On the current state of the law, the broker has no right to any indemnity when the relationship ends. The reason is categorical: the broker is not a mandatary, so it cannot claim the indemnity the courts reserve to the common-interest mandatary. This is so even though a broker will sometimes have contributed to creating or developing a clientele — earning it a stream of remuneration on the operations the supplier concludes with that clientele — and even though the end of the relationship makes it lose, for the future, that advantage while the supplier keeps the whole benefit of the customers introduced.

Commentators have argued that the regime of the common-interest mandate might, by analogy, be extended to a broker whose canvassing genuinely built the clientele, with the activity of prospecting — rather than the label of "sales representative" — as the decisive criterion. But that is a proposal, not the law. As matters stand, a supplier that wants to reward, or to protect, a broker who has built a customer base must do so by express contractual stipulation; absent such a clause, the broker leaves with nothing on termination. For a foreign company, this is precisely the broker's attraction relative to the agent: introductions without an exit cost.

The online broker: platforms, marketplaces and their new duties

The broker is an ancient figure that has found a powerful second life online. Referencing centrals and, above all, the online intermediation platforms and marketplaces that now mediate so much commerce are, in substance, brokers: they operate an administered environment in which offers and demands for products or services are expressed and matched. The classical qualifications are tested by these operators, and their characterisation — mere referencer, host, or active operator — varies with the concrete role they play, which in turn determines their liability, including for infringements such as trade-mark violations committed on the site.

The online broker also carries a duty of particular interest to suppliers that run distribution networks: it must put in place measures against any use of its site aimed at carrying out illicit sales, notably to the detriment of distribution networks. The operator of an online marketplace can be held liable for trade-mark infringements committed on its site where it plays an active role such as to give it knowledge or control of the data relating to the offending offers; and, failing such an active role — where it merely hosts the site — where it had knowledge of the illicit offers and did nothing to stop them (Court of Justice of the EU, L'Oréal v eBay, Case C-324/09, 12 July 2011). For a brand protecting a selective or exclusive network in France, the online broker is therefore both a channel and a potential source of leakage, and its status is worth pinning down.

Two European regimes now overlay the online broker's activity. Under the P2B Regulation (Regulation 2019/1150 on online intermediation services), the platform owes transparency about its general terms, its ranking parameters and any differential treatment it grants, together with specific rules on suspending or terminating a business user's account and a ban on retroactive changes to its terms. Under the Digital Services Act (Regulation 2022/2065), providers of intermediary services owe layered due-diligence duties — a single point of contact, clear terms stating any restrictions, notice-and-action mechanisms for illegal content for hosting services, and reinforced transparency and complaint-handling for online platforms, with additional obligations where the platform lets consumers conclude distance contracts with traders. An online broker serving the French market must therefore reckon not only with the classical law of brokerage but with this regulatory layer.

When to use a broker — and the requalification risk

The broker suits a supplier that needs introductions rather than an ongoing sales force: a party to open doors, match counterparts, and be paid for the deals that result, without conferring a representation, tying up the supplier, or creating an exit cost. It is well adapted to occasional or high-value matching, and it is the legal backbone of the platform economy. Its light duties and its terminability at will are the point.

The risk, as always, is that the relationship drifts into a more protected category. A "broker" that in fact negotiates the terms in the supplier's name, or that canvasses and develops a clientele on a permanent footing, may be recharacterised as a commercial agent or a common-interest mandatary — with the indemnity that attaches to those figures. The generous modern conception of the commercial agent makes this frontier especially live. The safe course is to keep the broker's role to introduction and information, to document its independence and neutrality, and to add expressly any further obligation — secrecy, non-compete, collection mandate — rather than let the relationship grow into something the label no longer fits.

For a foreign supplier, the broker and the commercial agent therefore sit at opposite ends of a spectrum, and the choice between them is a choice about commitment and cost. The broker is the instrument for opening a market, testing demand, or capturing occasional high-value deals without undertaking anything durable and without building an exit liability. The commercial agent is the instrument for a settled, ongoing presence, in exchange for the statute and the indemnity. A supplier that expects its intermediary to canvass, to hold itself out for the brand, and to build a book of repeat customers is, in truth, looking for an agent, and should appoint one deliberately rather than discover the fact on termination.

Frequently asked questions about the broker

What is the difference between a broker and a commercial agent in France?

A broker (courtier) only brings the parties together; it does not conclude the contract or represent either side, and is generally revocable at will with no indemnity. A commercial agent has a permanent mandate to negotiate — and often conclude — in the principal's name, and enjoys the protective statute and a termination indemnity.

Does a broker get a termination indemnity?

No. Because the broker is not a mandatary, it cannot claim the common-interest mandatary's indemnity, and on current law it has no end-of-contract indemnity at all — even where it helped build the clientele. Any reward on termination must be agreed expressly in the contract.

When is the brokerage payable?

When the projected sale is concluded, whether or not it is then performed (for a term sale, after final settlement). The brokerage is void where the supplier and the third party were already in a relationship, because the introduction then has no counterpart.

Does the broker guarantee the deal it introduces?

No. The broker does not participate in the sale and is not, in principle, a guarantor of its performance; it owes no warranty under the sale. Its core duty is accurate information to both the supplier and the buyer, plus neutrality where it acts for both.

Are online marketplaces brokers?

In substance, yes — they match offers and demands like a broker. Depending on their concrete role they may be referencers, hosts or active operators, and they are subject to the EU P2B Regulation (2019/1150) and the Digital Services Act (2022/2065), with transparency, termination and due-diligence duties.

Can a broker be dismissed without notice?

In principle yes: the brokerage relationship is revocable at will (ad nutum), reflecting the broker's light obligations. The parties may agree otherwise, and any additional undertakings — such as a post-termination non-compete — will be enforced according to their terms.

Key takeaways

How our French lawyers help with brokerage arrangements

This article is for general information only. It does not constitute legal advice. The classification of an intermediary as a broker or a commercial agent is fact-specific. Contact our French lawyers for qualified advice before appointing a broker or contesting a classification.