Agency contract with legal entity and variation of its partners

contrato de agencia

 

Changes in the partners of the legal entity do not extinguish the agency contract

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If the agent is a legal person, the death of one of the partners, or the change of its components, does not imply the extinction or the novation of the agency contract.

The 14th Section of the Madrid Provincial Court ruled on 27 January 2020, with No Resolution 11/2020, dismissing the appeal filed by PALLMANN MASCHINENFABRICK GMBH (PALLMANN, onwards). The Section confirmed the sentence handed down in the first instance by the Court of First Instance nº 6 Mostoles. Condemned PALLMANN to pay DEMA GERMAN MACHINES, S.L. (DEMA, onwards), the amount of € 40,446.82 as compensation for customers and for lack of notice.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

Between PALLMANN and DEMA, S.L., there was a verbal agency contract, why DEMA, S.L., commercialized in Spain and Portugal the products of PALLMANN's social activity. The duration of the contract was indefinite. D. Sixto, DEMA partner, S.L., passed away. The agency contract remained in force, until, in 2016, the strategy was modified, and the contractual relationship was terminated via email from PALLMANN to DEMA, S.L. the 28 July of that same year.

By DEMA, S.L. interposed demand, requesting that PALLMANN be sentenced, to the payment of an amount for compensation for clientele and by breach of the notice period.

Primera Instancia

The Court of First Instance No. 6 de Móstoles sentenced the 20 March 2019, estimating the demand filed by DEMA, S.L. Condemned PALLMANN to pay DEMA, S.L. 40.446,82 €, plus legal interest from the date of filing of the application.

For the Court there was a verbal agency contract between the plaintiff and PALLMANN, indefinite. D. Sixto passed away in 2015, becoming partner D. Victorino. The contract was not terminated with the death of D. Sixto, for the contract was concluded with the legal person, not with the partner.

The contractual relationship was terminated by email from PALLMANN, Day 28 July 2016. The Court considered that the plaintiff was entitled to compensation for the clientele of art. 28 LCS. It was proven that new customers had been added to PALLMANN. It also considered adequate the amount established for compensation for breach of the notice period of PALLMANN.

Provincial Court

PALLMANN interpuso appeal. He gave the following reasons:

  • first plea: Error in assessing the evidence. He argued that there were two agency contracts. One with D. Sixto and another with D. Victorino. The first became extinct with the death of D. Sixto.
  • second reason: the compensation for clientele was based on mere assumptions, without evidence.
  • third plea: disagreed as to the indemnización por falta de preaviso, of the criteria used for its quantification.

Section 14 of the Provincial Court dismissed all the alleged reasons.

As to the first plea, the Section considered that there was only one agency contract, because the verbal contract was signed with the society, not with its specific partners. The contract was not considered terminated with the death of D. Sixto.

Moving on to the second reason, PALLMANN could not ignore the clients that DEMA had contributed, well before 2011, he was the only agent. Confirmed the amount of the compensation for customers established at first instance.

Last, as for the third reason, referred to compensation by notice, the provisions of art. 25.2 LCA. In this case, the maximum term of 6 months. However, PALLMANN only awarded 2 months of notice, corresponding also the remaining amount equivalent to the 4 months left. To determine the amount, applied the criteria established in the first instance judgment, namely, the commissions received in the period immediately prior to the termination of the contract.

Conclusion

The agency contract concluded with a legal entity, it is not extinguished by the changes in natural persons that compose it. The death of one of them, or the change of its components, does not imply its termination or the start of a new contractual relationship. The right to compensation for customers arises when, upon termination of the agency contract, new clients had been added or operations with pre-existing clients had increased (art. 28 LCA).

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