Contrato de Agencia, Distribution or Complex
How to differentiate between an agency contract, distribution or a complex contract?
The Law Agency Agreement, in its preamble, It indicates that its raison d'être was the incorporation into Spanish law of the normative content of the Directive 86/653 / EEC, of 18 December 1986, on the coordination of Member States relating to self-employed commercial agents.
It refers to the "independent sales agents" as opposed to sales representatives or brokers, emphasizing the notes of independence, otherness, remunerated and permanence.
And according to these characteristics, It establishes inter alia, the right to a compensation for clientele and by damages, in cases of breach or termination.
In this manner, you try to avoid temptation that could have some company, to cease the relationship with the independent agent and keep the goodwill or customer base created through their efforts.
Although the Agency Agreement Act expressly intends that the figure of the agent is developed both by an individual as a legal person, sometimes complicated trade relations and a legal person developed multiple activities in relation to the company "provider": In these cases, You can not talk of agency agreement, or pretend to qualify for the "protective" regime established in the Law of Agency Agreement.
In contrast to Contrato de Agencia, the Distribution Agreement It characterized by the following notes:
1. The distributor acts on own behalf, assuming the risk of the operation (SSTS 31 October 2001 and 12 June 1999).
2. The remuneration for the dealer's margin resale (STS 547/2013, of 2 October).
3. The contract is to promote the resale of products, usually integrated into the provider's network.
4. It is a commercial contract usually accession and continued duration.
5. Usually it involves an assignment of rights to intangible assets such as brands or know-how.
6. Generally governing mutual exclusivity in the territory agreed upon by both the distributor and the supplier.
And in the trade, the above figures may be combined with maintenance, Service and various other considerations that make us finally to find what the law calls "Contracts Complexes".
The Provincial Court of Madrid has solved one of these cases where various commercial relationships overlap in its judgment of 17 November 2015.
The company you call "Falcon" acted as exclusive distributor for sale to non-members of "Cione" products "Ciona", en el territorio de Valencia y Murcia. "Falcon" found that there had been a unilateral termination of the contract and He requested to compensation pursuant to Law Agency Agreement.
The Court of First Instance No. 7 Madrid dismissed the claim of "Falcon".
The plaintiff, He appealed to the Provincial Court of Madrid.
For the Board, we really are dealing with a complex contract, en el que “Falcón” realizaba la distribución meramente material siendo “Ciosa” la que asumía el riesgo de las operaciones, the applicant merely receive a commission.
And it was not really a distribution agreement, but a complex contract as the content on the distribution was only part of the total bargaining: Workshop services are also paid, which continued to provide up 2011.
Nor was there unilateral termination or anticipated contract, because the will not to extend the contract at maturity on a portion thereof communicated, continuing distribution to non-members of "Cione" (they were the only ones on which they had agreed a true distribution contract 2003).
For the sake, it would have been a failure of "Falcon" to have a over unpaid debt 14.000 euros.
Ultimately, the judgment of the first instance is confirmed considering that It was a complex contract and not an exclusive distribution agreement, or an agency contract.