Agency contract and final buyers

abogado contrato agencia

 

Is there a right to compensation for customers in agency contracts if the sale is made to final consumers?

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In this post we review some conflicting aspects in the resolution of a agency contract, leaning on the sentencing 19 February 2020, with No Resolution 71/2020, of la 7th Section of the Audiencia Provincial de Gijon.

In solving a agency contract,  the employer must specify the causes and a generic claim of non-compliance is not enough.

The termination of an agency contract must comply with the notice periods that are established in the article 25 Act 12/1992, of 27 May, of the Agency Contract. The general notice period is regulated in section 2 of said precept: one month for each year of the contract, with a maximum of 6 months.

In case of not being entitled to compensation in the LCA, you can go to the action for compensation for damages caused as a result of the surprise termination of the contractual relationship, bringing up the general rules on breach of contract.

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 Vorwerk, S.L. and Ms.. Luisa, Ms.. Lina and Dña. Loreto, they were signed three agency contracts, for direct sale of "Thermomix". Agency contracts lasted for 14, 7 and 14 years old, respectively. They were unilaterally resolved by Vorwerk, S.L. through communications sent on 16 February, the 4 and 13 March 2017, claiming "Dissatisfaction on the part of the company of its performance", solving the contracts the 21 and 22 August 2017, after considering the established legal notice periods. The causes of the termination of agency contracts were not specified, más allá de la citadadisagreement”.

By Dña. Luisa, Ms.. Lina and Dña. Loreto filed suit, requesting that the company be sentenced to pay the compensation for clientele so for the damages when terminating the contract surprisingly, applying articles 50 CCom and 1101 and following of CCivil for breach of contract, as non-received benefits corresponding to the time in which it should have been legally pre-notified, derived these benefits from the commissions paid to the plaintiffs by the defendant, making a monthly average for the corresponding number of months of notice.

Primera Instancia

The Court of First Instance No. 7 de Gijón sentenced the 9 April 2018, fully estimating the claim filed by Ms.. Luisa, Ms.. Lina and Dña. Loreto, condemning the defendant, Vorwerk, S.L., to the payment of € 30,387.33 to Dña. Luisa, 18.606,80 € to Dña. Lina and 49.771,94 € to Dña. Loreto as compensation for damages by unilateral resolution of agency contracts.

Provincial Court

Vorwerk, S.L. interpuso recurso de apelación.

All the reasons alleged in the appeal were dismissed by the Provincial Court Section, except for the reason in which the inadmissibility of compensation for damages for lack of six months' notice (art. 30 LCA), which was partially estimated, en el sentido de correct the calculation and amount set in the compensation that corresponded to Ms.. Lina. He set the amount at 17.966,88 €, because his contract did not complete six years, The agency contract was already signed on 20 October 2011 and communication was sent to him on date 4 March 2017 with effects 22 August 2017, so more than five months passed, which are the period corresponding to the full five years of the contract.

We briefly point out the rest and reasons.

Accreditation of the right to compensation for customers

Despite being a sale to the final consumer, the Court considered it proven that a percentage of customers bought a second machine, and that cookbooks were coming to them and repairs were being made. So it was not just buyers but they are customers who report benefits to the company (STS 30 April 2004).  In any case, it would be up to the employer to prove that, after the contract is terminated, did not experience any benefits derived from the customer base provided by the agent (STS 7 April 2003).

It is the employer who must prove the breaches

The art. 26 de la LCA permite dar por finalizado el contratoWhen the other party has failed, total o parcialmente, las obligaciones legal o contractualmente establecidas”. Moreover, art. 30 says ” The agent will not have the right to compensation for clientele or damages: a) When the employer has terminated the contract due to breach of the legal or contractually established obligations under the agent….

Part of the doctrine and minor jurisprudence are inclined to maintain that the employer in the written communication notifying the termination of the contract for the agent's breach, debe hacer mención y descripción específica de la conducta incumplidora. En este caso el término empleado fue demasiado genéricola disconformidad por parte de la empresa de su actuación”.  The specific breach that had been carried out was not expressly stated..

Also, the burden of proof of noncompliance falls on the employer (STS 10 November 2008) and the Chamber did not consider the same accredited.

Failure to comply with the notice period

The Audience understood that it was allowed to found the exercise of an action for compensation for damages caused as a result of the surprise termination of the contractual relationship, with basis, not in art. 29 LCA (that regulates compensation for unamortized investments or trust expenses), but in the general rules on contractual breach that are contemplated in the articles 50 of the CCom and 1101 ff. Civil C, en concepto de benefits lost corresponding to the time when they must have been legally pre-notified; and that resulted from commissions paid to the plaintiffs for the defendant, making a monthly average for the corresponding number of months of notice.

Conclusion

Although the sale is made to final buyers, it is possible that they will generate a profit to the entrepreneur after the termination of the agency contract and therefore, derecho a una indemnización por clientela. La comunicación de la resolución del contrato por causa imputable al agente debe determinarlas y no basta con alegar la “disagreement”.

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