2016-12-21
3047 
佣金——现代买卖经纪实务
Commission for S&P brokers is normally calculated by reference to a percentage of the sale price of the ship being sold. In the case of The Manifest Lipkowy the judge summarised modern practice as follows:
买卖经纪人的佣金一般是参照预计出售的船舶之销售价格百分比进行计算。在The Manifest Lipkowy案，[1] 法官对此现代的经纪人实务总结如下：
“… the usual practice is for the amount of the commission to be agreed between the sellers and brokers with whom they are dealing, the amount being a total figure ‘for division’ between all the brokers involved.
Thus, if both parties are represented by brokers, the buyer's broker will indicate the amount which he claims for himself (including in this amount any payment which he may have agreed to make to another broker, or brokers, e.g. for introducing the buyer's business to him) and the seller's broker will then negotiate with the seller a figure for total commission, including his own and, likewise, that of any other intermediaries to whom he may be responsible.
The buyer, therefore, pays the amount of the offer and no more, even to his own broker, unless there is some further agreement between them. The seller, on the other hand, receives only the net amount after deducting total commission, and the amount of commission is of particular importance to him.
Sellers often try to reduce the total amount by negotiation with their own broker, and they can, if they so wish, discover the number and identities of the other brokers between whom the total commission will be divided. The amount of commission therefore forms part of the sale negotiations which the brokers are conducting on behalf of and with their principals ….”
Thus, if both parties are represented by brokers, the buyer's broker will indicate the amount which he claims for himself (including in this amount any payment which he may have agreed to make to another broker, or brokers, e.g. for introducing the buyer's business to him) and the seller's broker will then negotiate with the seller a figure for total commission, including his own and, likewise, that of any other intermediaries to whom he may be responsible.
The buyer, therefore, pays the amount of the offer and no more, even to his own broker, unless there is some further agreement between them. The seller, on the other hand, receives only the net amount after deducting total commission, and the amount of commission is of particular importance to him.
Sellers often try to reduce the total amount by negotiation with their own broker, and they can, if they so wish, discover the number and identities of the other brokers between whom the total commission will be divided. The amount of commission therefore forms part of the sale negotiations which the brokers are conducting on behalf of and with their principals ….”
‘……通常的做法是卖方和与他业务往来涉及的经纪人（们）之间约定佣金的数额，这一数额是总的佣金数值，由所有参与该业务的经纪人共同进行‘分摊’。
因此，如果买卖双方都由经纪人代理，买方经纪人将首先显示他所要求的佣金数额（在这一数额中包括他已经同意支付给其它参与的经纪人的款项，例如为他介绍生意/业务的经纪人），卖方的经纪人再将加上自己的那一份佣金，同样还有他所负责的中间人的佣金一起与卖方进行谈判有关总的佣金数额。
因此，买方，只需要支付发盘价的数额，即使是对于他自己的经纪人，也不用再支付，除非他们之间另有协议。另一方面，卖方仅收到扣除总的佣金数值之后的净船价，因此，佣金数值的高低对他来说特别重要。
卖方经常通过与他自己的经纪人（们）谈判试图减少佣金支付的总数值，同时他们可以，如果他们愿意的话，发现参与分摊总佣金的其它经纪人的人数和身份。因此，佣金的数值也形成买卖谈判的一部分，这是经纪人（们）代表他们自己与他们的委托人进行的谈判……’
因此，如果买卖双方都由经纪人代理，买方经纪人将首先显示他所要求的佣金数额（在这一数额中包括他已经同意支付给其它参与的经纪人的款项，例如为他介绍生意/业务的经纪人），卖方的经纪人再将加上自己的那一份佣金，同样还有他所负责的中间人的佣金一起与卖方进行谈判有关总的佣金数额。
因此，买方，只需要支付发盘价的数额，即使是对于他自己的经纪人，也不用再支付，除非他们之间另有协议。另一方面，卖方仅收到扣除总的佣金数值之后的净船价，因此，佣金数值的高低对他来说特别重要。
卖方经常通过与他自己的经纪人（们）谈判试图减少佣金支付的总数值，同时他们可以，如果他们愿意的话，发现参与分摊总佣金的其它经纪人的人数和身份。因此，佣金的数值也形成买卖谈判的一部分，这是经纪人（们）代表他们自己与他们的委托人进行的谈判……’
佣金安排的证据记录
It is comparatively rare to encounter a contract for the sale of a second-hand commercial ship in which the brokers' entitlement to commission is spelt out. However, there may be a side agreement between each principal and its broker as to the commission structure in the contract itself and the amount of commission payable, and as to the means of payment of the commission.
Although it is commercially sensible for such arrangements to be documented properly they are often discussed and agreed (but without being separately documented) either in the course of the sale negotiations or (less frequently) at or after sale completion.
Although it is commercially sensible for such arrangements to be documented properly they are often discussed and agreed (but without being separately documented) either in the course of the sale negotiations or (less frequently) at or after sale completion.
相对很少遇见在二手商船的买卖合同中会清楚说明经纪人的佣金权利。[2] 然而，就合同本身而言，有关佣金构成，应支付的金额以及支付方式等方面，每一个委托人和他的经纪人之间可能会有单边协议。
尽管这样安排应该用文件适当地记录下来，这在是商业上合情合理的，他们经常在买卖谈判过程中进行讨论和同意（但却没有单独记录下来），或者在船舶出售时或完成后（经常很少用文件记录）。
尽管这样安排应该用文件适当地记录下来，这在是商业上合情合理的，他们经常在买卖谈判过程中进行讨论和同意（但却没有单独记录下来），或者在船舶出售时或完成后（经常很少用文件记录）。
One of the defences put forward by the principals in the case of Seascope Capital Services v. Anglo-Atlantic S.S. Co Ltd and another (2002) was that the agreement with brokers was too vague and informal to have been intended to give rise to a legally binding contract. The court disagreed, the judge observing:
在Seascope Capital Services v. Anglo-Atlantic S.S. Co Ltd and another (2002)案，委托人提出的一个抗辩是与经纪人的协议太过于模糊的和非正式的，以至于不能产生一个具有法律约束力的合同。但法院并不认同，法官评论道：
“…that it would have been wiser for [brokers] to have insisted on a formal written agreement. … However, as a matter of law, such an agreement need not be set out in a formal document. The agreement is perfectly clear when set in the commercial context ….”
‘……对于[经纪人]来说，这本应该明智地坚持要求一份正式的书面协议……然而,作为一个法律问题,这样的协议并不需要以正式的文件呈现。在商业背景中，该协议是非常清楚……’[3]
The importance of agreeing and documenting the rate of commission is illustrated by the case of Berezovsky and another v. Edmiston & Co Ltd and another (The Darius) (2011). In May 2008 Mr Berezovsky instructed the yacht broker Edmiston & Co Ltd to find a buyer for the luxury yacht Darius which was then under construction by the Lürssen shipyard in Germany for the account of Petersham Holdings Ltd, a company controlled by Mr Berezovsky.
Edmiston enlisted the help of another yacht broker – Merle Wood & Associates Inc – to find a buyer for Darius. Merle Wood passed details of the yacht to a family known as the Al Futtaims through the captain of one of the other yachts owned by the family. Subsequently senior members of the family approached Petersham, through the Lürssen shipyard rather than via the brokers, and in October 2008 Petersham sold the yacht for €240 million to a company controlled by the Al Futtaims.
Edmiston enlisted the help of another yacht broker – Merle Wood & Associates Inc – to find a buyer for Darius. Merle Wood passed details of the yacht to a family known as the Al Futtaims through the captain of one of the other yachts owned by the family. Subsequently senior members of the family approached Petersham, through the Lürssen shipyard rather than via the brokers, and in October 2008 Petersham sold the yacht for €240 million to a company controlled by the Al Futtaims.
在Berezovsky and another v. Edmiston & Co Ltd and another (The Darius) (2011) 案，[4] 很好地阐明了约定佣金费率并用文件记录的重要。在2008年5月，Berezovsky先生指示游艇经纪公司Edmiston & Co Ltd 为正在德国Lürssen船厂建造的豪华游艇Darius寻找买方，受益方为Petersham控股有限公司，该公司是由Berezovsky先生掌控操纵。
Edmiston争取到了另一家游艇经纪公司（Merle Wood & Associates Inc）的协助为该游艇Darius寻找买方。Merle Wood公司通过著名的Al Futtaims家族拥有的其它游艇中一名船长把该游艇的详细资料转交给该家族成员。 后来，该家族上层人员是通过Lürssen船厂，而不是通过经纪人接洽Petersham控股有限公司。随后在2008年10月，Petersham公司把该游艇以2.4亿欧元卖给了Al Futtaims家族控制的一家公司。
Edmiston争取到了另一家游艇经纪公司（Merle Wood & Associates Inc）的协助为该游艇Darius寻找买方。Merle Wood公司通过著名的Al Futtaims家族拥有的其它游艇中一名船长把该游艇的详细资料转交给该家族成员。 后来，该家族上层人员是通过Lürssen船厂，而不是通过经纪人接洽Petersham控股有限公司。随后在2008年10月，Petersham公司把该游艇以2.4亿欧元卖给了Al Futtaims家族控制的一家公司。
Disputes arose as to whether or not the brokers were entitled to commission on the sale (as to which, see section 2.2.4 below) and, if commission was payable, as to the total amount payable. Edmiston contended that the commission payable on the Darius sale transaction should be at or near to 10% of the price and not less than 5%.
产生的争议是：经纪人是否有权获得买卖佣金（有关于此，请参看下文第2.2.4节），如果应支付佣金，总额是多少？Edmiston公司争辩说，在Darius游艇买卖交易中，可支付的佣金应当是或接近船价的10%并不少于5%。
There was no written brokerage agreement, but at the trial the parties accepted that an oral agreement has been made between Edmiston on the one hand and Mr Berezovsky and Petersham on the other hand. At first instance, the judge held that:
1. the parties had not agreed on a rate of commission;
2. Edmiston had indicated that a price of €300 million (net of commission and other sale costs) was definitely achievable;
3. Edmiston had also indicated that in the event of a net sale price of €300 million being achieved, it would be prepared to accept a commission of 2.5%;
4. it was a reasonable expectation of the parties to the brokerage agreement that the rate of commission would go up if the net price achieved was appreciably lower than €300 million; and
5. in the circumstances the appropriate rate of commission payable to Edmiston was 3% of €240 million.
尽管这没有书面的经纪协议，但在审判中，双方都接受在Edmiston公司一方和Berezovsky先生及Petersham公司另一方之间存在有一个口头协议。在该案一审，法官判决：
(1). 双方当事人并没有同意佣金费率；
(2). Edmiston公司显示3亿欧元的出售价格（净佣金和其他销售成本）是绝对可行的；
(3). Edmiston公司还表示,如果能够实现3亿欧元的净销售价格，这将准备接受2.5%的佣金；
(4). 如果净成交价格明显低于3亿欧元，双方的经纪协议合理预期的佣金费率可能会有所上升；
(5). 在这种情况下，支付给Edmiston公司的佣金适当的费率是2.4亿欧元船价的3%。
Mr Berezovsky appealed from the first instance decision on the ground that the commission awarded to Edmiston was excessive and that a reasonable rate of commission would be less than 2.5%. The Court of Appeal held that the commission rate should be reduced to 2.5% but no further.
The court relied on the decisions in Way v. Latilla (1937) and Allan v. Leo Lines (1957), observing that it had to pay close attention to any statements by the parties as to what they regarded as reasonable remuneration for the broking services. In face-to-face discussions Edmiston had indicated that a rate of 2.5% would be acceptable, albeit in relation to a sale price that was higher than the price eventually achieved.
This indication was strong evidence of the parties' expectations of a reasonable rate of commission whatever the price in fact achieved and substantial reasons would be required before the court could be persuaded to apply a different rate.
The court relied on the decisions in Way v. Latilla (1937) and Allan v. Leo Lines (1957), observing that it had to pay close attention to any statements by the parties as to what they regarded as reasonable remuneration for the broking services. In face-to-face discussions Edmiston had indicated that a rate of 2.5% would be acceptable, albeit in relation to a sale price that was higher than the price eventually achieved.
This indication was strong evidence of the parties' expectations of a reasonable rate of commission whatever the price in fact achieved and substantial reasons would be required before the court could be persuaded to apply a different rate.
一审判决后，Berezovsky先生以裁定给Edmiston公司的佣金过高为理由提起上诉，并认为合理的佣金费率应少于2.5%船价。
上诉法院判定佣金费率应减至2.5%并不再有其它款项。法院依据先例Way v. Latilla (1937)[5] 案和Allan v. Leo Lines (1957)[6] 案的判决，并评论说，这必须密切关注当事双方‘就他们所认为的经纪服务的合理报酬’有关的任何陈述。在面对面的争论中，Edmiston公司表示2.5%的费率也是可以接受的，尽管有关船舶的销售价格应该高于最终的成交价格。
这一迹象是当事双方所预期的合理佣金费率的强有力的证据。无论事实上实现的成交价格，以及之前要求的实质重要的理由，最后法院被说服使用不同的费率（2.5%）。
上诉法院判定佣金费率应减至2.5%并不再有其它款项。法院依据先例Way v. Latilla (1937)[5] 案和Allan v. Leo Lines (1957)[6] 案的判决，并评论说，这必须密切关注当事双方‘就他们所认为的经纪服务的合理报酬’有关的任何陈述。在面对面的争论中，Edmiston公司表示2.5%的费率也是可以接受的，尽管有关船舶的销售价格应该高于最终的成交价格。
这一迹象是当事双方所预期的合理佣金费率的强有力的证据。无论事实上实现的成交价格，以及之前要求的实质重要的理由，最后法院被说服使用不同的费率（2.5%）。
佣金回扣（回佣）
Sometimes a buyer may seek commission (often known as address commission) calculated on the gross sale price and payable to it by way of deduction from the purchase price. Where a seller agrees to such commission, it appears to be common practice for the buyer's entitlement to address commission to be kept off the face of the sale contract and to be dealt with in a side agreement made between the principals or between the seller and the brokers.
有时买方可能会要求佣金（通常称为佣金回扣），以船舶总出售价格进行计算，然后从船舶购买价格中扣除后进行支付。若卖方同意这种佣金，对于买方享有回佣的权利，通常的做法显然是避开买卖合同正面的条款而以当事人之间或者卖方与经纪人之间的单边协议进行结算。
[1] [1988] 2 Lloyd's Rep. 171, per Evans J at 172.
[2] The practice of expressly including in the sale contract the commission payable to brokers is more common in the yacht market (s ee, e.g., the Mediterranean Yacht Brokers Association (“MYBA”) standard form contract for the sale and purchase of second-hand yachts) and in the cruise ship market.在游艇和巡旅游客轮买卖市场，通常做法会在买卖合同中明示支付给经纪人的佣金（例如，地中海游艇经纪人协会二手游艇买卖标准格式合同）
[3] [2002] 2 Lloyd's Rep. 611 at 623.
[4] [2011] 1 Lloyd's Rep. 419.
[5] [1937] 3 All ER 759.
[6] [1957] 1 Lloyd's Rep. 127.
海运圈聚焦专栏作者 魏长庚船长（微信号CaptWei）
海运圈聚焦专栏作者 魏长庚船长（微信号CaptWei）
