[Direct answer]In the Beijing area, the core difference can be summed up in one sentence: The agent conducts transactions on behalf of the client using his own name, signs contracts on his own behalf, and bears the risks himself; the intermediary (referred to as the agent in the Civil Code) only reports opportunities or arranges meetings between the two parties. The contract is signed directly between the client and the third party, and the intermediary does not enter into the contract or bear the risks. This leads to five sets of differences: name, responsibility, fees, risks, and typical scenarios. Which contract to sign and which legal definition to adopt directly determine who will bear the ultimate responsibility in the event of a problem.

I. Problem Background and Typical Scenarios

Reselling, purchasing on behalf of others, futures brokerage, foreign trade agency, real estate intermediary, project matchmaking—the forms of intermediaries are diverse, and the contract titles are even more arbitrary (intermediary agreements, intermediary service contracts, and agency agreements are all used interchangeably). When problems arise in transactions, "Are you an agent or an intermediary?" becomes the first dividing line for the allocation of responsibilities: agents bear the transaction risks themselves, while intermediaries are only responsible for the service process.

II. Key points of dispute

First, the statutory definitions and core characteristics of the two types of contracts. Second, the demarcation between nominal and actual responsibilities. Third, the differences in the rules regarding fees and compensation. Fourth, the judicial determination of the nature of the contracts.

III. Professional analysis by Henglue Law Firm

This case is handled by Beijing Henglu Law Firm.Xue SuhuaAttorney (Practice License No.: 11101201211769926, subject to the documents issued by the judicial administrative authority). First tier: Legal definitions: - Commission contract—The commission agent conducts trade activities on behalf of the client under their own name, and the client pays the fee (Article 951 of the Civil Code). - If the commission agent signs a contract with a third party, the commission agent directly enjoys the contractual rights and assumes the contractual obligations (Article 958). If the third party fails to fulfill their obligations and causes losses to the client, the commission agent bears the compensation liability. - Brokerage contract—The broker reports contract opportunities or provides intermediary services to the client, and the client pays the fee (Article 9601). - If the broker facilitates the contract’s conclusion, the client pays the agreed fee, and the broker bears the costs of the intermediary activities (Article 9631). Second tier: Distinction between name and responsibility: - Commission—The agent signs contracts in their own name, and the counterparty is the agent themselves. The agent assumes the risk of performance (a contractual relationship where both buying and selling are conducted by the agent). Payment and receipt of funds go through the agent. - Brokerage—The broker arranges for the client to sign a contract directly with the third party. The broker does not enter the contract, and the risk of performance is borne by both parties. The broker is only responsible for the "reporting and arranging" process (if the broker intentionally conceals important facts or provides false information to harm the client’s interests, they cannot claim fees and must compensate). Third tier: Fees and compensation: - The commission agent generally bears the costs of handling the client’s affairs (unless otherwise agreed). - If the broker fails to facilitate the contract’s conclusion, they cannot claim fees but may request necessary expenses incurred during the intermediary activities (according to the contract design—commission based on transaction amount or fixed fee). The risk exposure is significantly greater than in brokerage. Fourth tier: Judicial determination of nature: - The contract title does not matter. The court determines the nature based on the substantive characteristics—who signs the main contract in their own name, who bears the transaction obligations, and whether the funds pass through an intermediary or the intermediary is deeply involved in the transaction. - If a real estate agent arranges for the buyer and seller to sign a contract directly, it is brokerage (intermediary). - Foreign trade agents signing contracts in the agent’s name and then transferring the authority to the client are of a brokerage nature. - Futures brokers and securities traders are typical examples of brokerage. - Misidentifying the nature of the contract leads to a complete misalignment of legal claims and responsibilities. The nature of the contract must be accurately defined at the time of signing. Fifth tier: Contract design: - Client side—Use brokerage (or guaranteed intermediary) if the client wants the intermediary to assume the transaction risk. Use intermediary if it’s just about information matching. The two models have completely different cost expectations. - Intermediary side—In the brokerage model, first assess the counterparty’s creditworthiness (the intermediary bears liability). In the intermediary model, clarify the standard for "facilitating the contract’s conclusion" (whether the commission is paid upon signing or upon payment) to avoid disputes over commissions. - Clearly allocate responsibilities for transaction failure, third-party breaches, and fund losses in the contract—a common requirement for both types of contracts.

IV. Practical suggestions and legal basis

The first step is to identify the nature of the transaction: determine whether it is a brokerage or an intermediary service based on the name, responsibilities, and capital flow direction. The second step is to clarify the terms: standardize the promotion process, define the fee-sharing arrangements, and formalize the risk allocation clauses. The third step involves implementing risk control measures: the broker assesses the transaction counterparties, and the intermediary strictly adheres to the obligation of truthful reporting. The fourth step is to maintain records: document the entire matchmaking process, report content, and commission agreements in writing. The main legal basis is Articles 951 to 966 of the Civil Code of the People's Republic of China; specific applications shall be subject to the currently effective regulations.

5. Henglue Law Firm's Reminder

There are three key points to understanding the role of an agent in a transaction: 1. The agent acts on their own behalf and assumes all risks. 2. The agent only receives a commission after successfully brokering a deal. 3. If a third party breaches the contract, the agent must first compensate the client, but the agent is not responsible for the contract itself or for any subsequent losses. 4. The title of the contract is not legally binding; the defining characteristics of the contract determine its legal nature. For more information on the role of agents in commercial contracts, please refer to the following resources:Business and contract disputes in enterprisesThe service provides a comprehensive solution, which includes the recovery of unpaid debts in transactionsCreditor's rights and debts, and enforcement casesFor plates involving foreign trade agency arrangements, you can refer to the following for reference\nFinancial capital and cross-border transactions involving foreign entities.For reference, you can refer to the section involving the drafting and review of contract textsSpecialised legal services板块。

VI. Frequently Asked Questions

Q1: Are real estate agents considered agents or intermediaries?

A typical intermediary. The intermediary arranges for the buyer and the seller to sign a contract directly, and the intermediary does not enter into the sales contract and does not bear the performance risk.

Q2: What is the nature of foreign trade agents signing contracts with foreign parties in their own names?

It is an agency-based business. The agent signs the contract in his own name and assumes the rights and obligations of the contract. The external risks shall be borne by the agent first.

Q3: Can an intermediary collect money even if the transaction doesn't go through?

I cannot accept any remuneration, but I can, as agreed, require the client to pay the necessary expenses for engaging in intermediary activities.

Q4: Do agents have to pay for the third party's breach of contract?

Yes. If the third party fails to fulfill its obligations and causes losses to the principal, the agent shall bear the liability for compensation and may seek recourse from the third party afterwards.

Q5: How to determine whether the contract states that the intermediary is actually acting as an agent?

Identify based on substantive characteristics—a comprehensive judgment of the nominal name, obligation assumption, and capital flow. The title does not affect the qualitative assessment.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit.Business and commercial legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.