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The Provincial Court of Barcelona applies compensation under the law of agency contract to a breach of the sales contract customer base

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The Provincial Court of Barcelona considered the analogous application of compensation for customers provided for in Article 28 of the Law of Agency Agreement, a shirking linked to a sales contract customer base.

This decision was adopted by Section 1 of the Provincial Court of Barcelona in Judgment No. 94/2018, of 16 February.


Following the closure of the company ART-TROQUEL die he was ceded SCCL client one of its members. Ms. Otilia contacted D. July, entrepreneur in the same sector and reached an agreement that consisted, in exchange for the transfer of client, a labor contract that would receive a net salary of € 1000 plus an amount to be signed 7% Monthly billing of the customer base contributed, discounting freight transport and sale of machinery Company ART-TROQUEL.

The 1 July 2008 the employment contract was concluded between Ms Otilia and D. July, initially by 6 months with the intention of signing a contract then indefinite term. In December 2008 it was agreed that from 2009 the salary would become of 1200 € net per month and the commission would increase from 7 % to the 5%, which they would have to subtract freight. The day 1 January 2009 the indefinite contract was signed between the parties.

On date 15 April 2010, D. July, so surprising and 10 minutes before the end of your workday informed him that dispensed with his services, without giving him time to recover his portfolio provided customers or even speak the same.

Ms. Otilia filed suit against D. July Where he requested compensation for wrongful termination of an indefinite contract, because the benefit had obtained both for the provision of paid employment, such as the customer base, It would have been much greater than that obtained have occurred to her dismissal.

The defendant opposed the lawsuit alleging the lack of standing of Mrs. Otilia, not being the holder of that portfolio and passive legitimization because there was only an employment relationship were accredited without the existence of the sales contract customer base.

Finally, for compensation if the dismissal is reclamase, He requested that the amount be deducted 4.191 €, paid as workers' compensation; and, in the case of payment of the price of the portfolio reclamase, He requested that the amount be deducted 21.540 €, that the plaintiff claimed to have received.

Primera Instancia

The Court of First Instance No. 4 of Granollers sentence 15 March 2016, He dismissed the lawsuit because he understood that there was no evidence of the terms agreed between the parties which could lead to compensation.

To Judge a quo the pact would be an indefinite contract and also permanent collection of fees in their favor, but it was not commercial and therefore, without exclusivity pact, which is typical in contracts portfolio transfer to incardinarlo in case of unilateral termination damages. Without that exclusivity pact, the applicant could take clients to any company or sell it for a price, He could have sued the dismissed labor way and did not.

Provincial Court

Ms. Otilia appealed the judgment of first instance on the ground that there was an erroneous assessment of the evidence because despite the pact commission was credited by turnover, unduly limited the duration of the contract and commissions to two years. He said that actually there was a pact contribution of that goodwill and know how to the defendant's business.

Regarding the nature of the relationship between the parties, the Chamber concluded that what was stated in the labor contract was the contribution of a client in exchange for a fixed salary and a variable so that during their relationship he perceived the amount of 21.540 €. Does not accept the version of the defendant for which Ms. Otilia would “in learning the trade” for two years, in exchange for a commission for customers during that period, after which he would leave.

Regarding the right to compensation, the plaintiff claimed compensation for damages suffered as a result of termination of the employment contract. The Chamber understood that the perceived gain as a variable amount for sales to customers was linked to the contract, so it would last as same as this.

Given that the employment contract was terminated improperly, a breach of contract which caused damage to the applicant on the understanding that failed to receive configured, Besides the fixed salary, the commissions he had continued to receive the wrongful termination not been given; reason why the Chamber understood requirements were fulfilled Articles 1.102 and 1.106 CC for compensation.

The Provincial Court went further and noted the possibility of compensation or compensation for the client provided, under the analogous application the legal relationship of the parties, of la Law Agency Agreement, to the extent it provided a portfolio that was already made. To support this position expressed in the mentioned STS 15 January 2008:

[…] It is also found in the art itself. 1258 CC the basis of compensation for customers, the same way that this precept, by integrating expressly agreed by the parties with all the consequences that depending on the nature of the contract were consistent with good faith, al uso y a la ley, He served basis in their day to the doctrinal and jurisprudential construction, today Pacific, the rebus sic stantibus as equitable remedy the imbalance of benefits for causes supervening contracts tract thereafter. In the case of distribution contracts, befallen such imbalance would not occur in the performance of the parties during the life of the contract but on the financial condition of each upon termination of the contractual relationship and have this be settled, liquidation due course in the contract itself; And neither should extraordinary circumstances, but normal or ordinary performance of the contract itself”.

He stressed the Chamber, despite that there was no exclusivity agreement, precisely because the service provided (different dies for each customer) data were required power of the applicant as head of the ministry and it was not possible to it, in an independent way, exploit it or sell it to another company for lack of business structure and because it had been exploited by the defendant's business for almost two years. Additionally, he highlighted the value of building customer base through commercial work 8 the 10 years old, which also it became evident to the extent that the main reason was to hire Ms. Otilia in the defendant's business.

It concluded that there were requirements for applying analogically Art. 28 of the Law of Agency Agreement because, in the words of the Chamber:

the portfolio was willing to continue to produce benefits to the defendant when he terminated the contract to the plaintiff, and it is equally appropriate for other circumstances of (loss of commissions and practically impossible for the plaintiff to continue to benefit from the portfolio)”.

For fixing compensation, It not endorsed the Provincial Court requested by the applicant with respect to the value set by the expert to the client because this was not a sale of this, so he went to the Agency Agreement Act in its art. 28.3 notes that may not exceed the average annual amount of remuneration derived by the agent during the last 5 years or throughout the duration of the contract if it is less.

Therefore it took into account all net remuneration perceived the plaintiff during the employment relationship of fixed salary and variable amount, considering that the hiring was done by the ownership of the customer base and the increase or decrease was in proportion to this variability, and compensation was set at 24,045.33 €.


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