Although the projects are started with the best intentions, sometimes not work, contracts are breached and need solve an agency agreement or a distribution.
Compensation for customers
In contracts for the Agency applies for cases of termination for breach of the employer compensation for clientele. This compensation is regulated in the Law 12/1992 of 27 May, on Agency Agreement (hereinafter LCA).
In the case of a breach of the employer, Law provides for two types of compensation:
1.-Compensation for customers: if the agent has brought new customers or operations significantly increased, entitled to compensation if their previous activity can continue to produce substantial benefits to the employer: the compensation shall not exceed in any case, the average annual amount of pay received by the agent during the last five years, or for the entire duration of the contract if this is less. (art.28 LCA). Agree that compensation is appropriate in the contract, although it should be judicial review of the agreement.
2.-Compensation for damages, in the event that the employer unilaterally denounce agency contract indefinite (art. 29 LCA).
In case that the termination is due to:
breach of contract by agent.
- Termination of the contract by the agent (unless it is for breach of the employer).
The employer is not liable compensation any.
The law has been applied by analogy this rule for cases of exclusive distribution contracts. To apply, jurisprudence has required that is resolved indefinite contract, that the distributor has brought new customers or has increased business with existing, can still produce benefits to the employer supplier, there are clauses that limit competition or that there has been a serious breach of the distributor.
In this sense, is interesting to see the judgment of TS 1 May 2012, in a case between a automaker and concessionaire. Was sued by customers seeking damages as well as reimbursement of the unamortized investment, the stored stock and bills due. Following is judgment at first instance and on appeal in the Court, the Supreme Court concluded that Article 28 the LCA is limited to establishing a cap on compensation, and the maximum of this limit, the trial judge draws and quantifies equity compensation. Judges may use judgment or moderate equity compensation.
Therefore, when setting compensation of such a contract, note, that in case of conflict, the amount, within the limits of the art. 28 of the LCA, can always be modulated up to the judge.