Guia sobre el contrato de agencia

 Contrato de agencia

 

In the agency contract a person is committed to promoting stable products or services of another,  in exchange for a commission, acting independently, without assuming the risks of operations

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In this guide, we review the key points of agency contract.

legal regime of the agency contract

The agency contract He born of the commercial practice. Therefore at first she had no own regulation.

The European Union noted the legislative differences in this area between Member States. He considered that these differences could affect business operations that usually gave. Accordingly, It was issued Directive 86/653 / EEC Council 18 December 1986, Coordination on the Rights of Member States relating to Commercial agents Independent, which it sought to harmonize the rules of the Member States.

Spain decided to incorporate into Spanish law the regulatory content of Directive 86/653 / EEC. And, He did the Law 12/1992, of 27 May, on Agency Agreement (LCA). Its entry into force occurred 18 June 1992. So good, the rules contained in the law are rules peremptory, mandatory, except those points that the law itself provides otherwise.

What is the agency agreement?

La LCA define el agency contract in its first article. It is that contract by which a person (the natural law) named agent it is obligated, stably, to a third party to promote and / or conclude commercial acts or operations employed. The agent acts as an independent intermediary and, unless otherwise agreed, will not assume the risk of operations carried out.

They can not fall within this figure persons linked by an employment relationship with the employer.

AP Lleida, in Case 15 February 2001, It offers a definition of an agency contract as: "Contract successive and continuous implementation, in which the agent acts as an employee, on behalf of the principal and interest, in a given area on an exclusive basis, seeks to promote and conclude contracts on behalf of employer represented, and has the right to receive a percentage remuneration agreed when the act or commercial transaction in question is perfected ".

La STS 860/2011 collects requirements doctrine for a relationship can be described as a agency contract and they are:

1.- And promotion activity and if necessary, the conclusion of events and trade operations.

2.- The agent acts as an employee.

3.- Agent independence.

So good, to speak of independence must know that it is understood by labor dependency. STS 29 May 2015 determines that the labor agency "Submission to instructions, Time controls, holiday arrangements and permissions, etc.”.

In the agency agreement, the agent It must act independently with respect to the employer. The agent can organize their work and time according to their free will. Governed by the principle of autonomy. This requirement allows the relationship between the parties is considered commercial and not a special employment relationship.

This independence extends to end such that the Provincial Court Castellon, in Case 5 May 2008, It determined that independence prevents agent and employer are members of the same society.

4.- Continued stable or obligation.

The agent undertakes permanently. This temporary feature allows difference to the obligation agency agreement similar figures, as the commission contract. This is because the commission contract is established for a single specific and particular obligation.

5.- remuneration.

The agency agreement is always paid. The art. 11 LCA allows compensation agent consists of a fixed amount, a commission or a combination of the above two systems.

The objeto the agency contract has not necessarily fall on goods. The agent can promote movement of goods, movables and services. This is a singular difference in the LCA compared with Directive 86/653 / EEC, Directive as the object of the contract is bounded to the sale of goods; concept very small.

Unlike the distribution contract

The distribution agreement is an atypical contract and because it lacks self-regulation. So that, its legal system is based on the free will of the parties. So good, its frequent use in practice has allowed the doctrine and jurisprudence highlight its most important elements.

The objeto the contract is distribution the resale of products, introducing and integrating market, generally, in the commercial and distributive network provider.

STS 31 October 2001 says, in the distribution contract, the dealer acting on behalf own, assuming the risk resale. This feature allows markedly differentiate the agency contract, in which the agent acts as an employee and, unless otherwise agreed, assumes the risk of the operation.

STS 2 October 2013 He adds that the economic perception of dealer margin is reselling the products sold by the supplier.

So good, in practice, given the proximity between the figure of the agent and distributor, jurisprudence on certain occasions has applied the LCA to resolve issues relating to the distribution contract. especially this analogous application happens when there is a identity of reason and we are in matters of termination or termination of the contract and compensation, as indicated by the STS 5 November 2013 and 2 October 2013.

For all the above, there are numerous differences between the agency agreement and distribution, to be noted that:

  • The distribution agreement lacks regulatory rules. In certain cases it can analogically applied the LCA. Governed by the principle of party autonomy in terms pacts.
  • The contract is the purchase and resale of products purchased the employer.
  • Dealer profit is the profit margin.
  • The distributor acts on behalf of itself and assumes the risk of the operation.

Requirements formalization of the agency contract

The agency agreement is consensual, namely, It is perfected with expression of consent of the parties.

But, Article. 22 LCA allows one party may require the other and any moment, the formalization of the contract written.

Agent obligations

The art. 9 LCA contains the obligations agent.

First, It establishes the obligation to act in accordance with the requirements and principles of the good faith. The agent must act professionally safeguarding the interests represented, these are, the entrepreneur. It must act guarding the confidence you have placed in it the employer, must do all that beneficial to him and away from those acts that might harm him.

Article, in its second paragraph, collects more particularly express specific obligations agent, and they are:

  • Act with due diligence: The agent exercises his professional activity subject to the diligence of a trader. And so, should carry out the promotion and, in some cases, completion of the acts and operations entrusted.
  • Communication and information to the employer: The agent must communicate to his principal all the information known by the activity performed and is necessary and crucial for good management operations. Especially, is important information relating to the financial solvency of third parties with whom there are pending operations to be completed or executed.
  • Accept instructions from the employer: The agent must abide by the instructions of the employer concerning the development of their professional activity. But, it is important that obedience to these instructions does not affect independence with which the agent acts.
  • Receiving complaints: The agent will receive all claims made by third parties the employer for defects, defects in quality or quantity of goods and services sold. Namely, the agent will act as a transmitter of claims made by customers as a result of transactions.
  • organized and separate accounts: The agent has the obligation to keep separate accounts for each employer on whose behalf.

Obligations of the principal

The employer's obligations are reflected in the art. 10 LCA.

As with the agent, the employer is required to fair dealing and in accordance with the principle of good faith. It is therefore the application to agency contract the principle of good faith that proclaims the art. 7.1 and 1258 the Civil Code and Article. 57 of the Commercial Code relating to commercial contracts. This principle is an ideal role model and source of obligations for both parties. The employer must not only to the agent fulfilling all that has been agreed in the contract or the specific obligations of art. 10.2 LCA, but also loyalty and good faith in all situations that arise Contract.

In the second paragraph of art. 10, more concrete obligations are added, and they are:

  • Facilitate the agent exercising professional activity: The employer must act diligently. You must give the agent, in good time, the documentation needed to develop professional activity (samplers, catalogs, rates, etc.).
  • Duty of information: The employer is obliged to inform the agent all the information necessary for the performance of professional activity.
  • Payment obligation: The employer must pay the agreed compensation with the agent for execution of the agency contract.
  • Notice of acceptance: Businessman, within 15 days, You must inform the agent to accept or reject the proposed transaction by it. In case of acceptance of the operation, you must also communicate its execution (Total or partial) or lack of execution.

Receives payment, determination, accrual and payment

Regarding remuneration from the people, There is freedom of pact between the parties to fix the criteria remuneratorio. This freedom of agreement provides that the remuneration shall consist of a fixed amount, a commission or a combination of both systems.

But, in the absence of agreement financial reward is fixed according trade uses the place where the agent to exert its activity. In the absence of these uses, compensation will reasonable depending on the circumstances of professional activity (art. 11 LCA).

The most common system of remuneration committee. The commission is calculated by applying a percentage of the number of operations or financial amount of these.

The commission will accrue in favor of the agent when the principal has executed (or he should have executed) commercial operation. It is also due when the operation has been executed, total or partial, by the third (art. 14 LCA).

So good, the Commission may accrue for transactions carried out at two different times:

Acts or operations concluded during the term of the agency contract (art. 12 LCA):

In these cases, the agent will commission if:

  • The operation has ended thanks to its professional intervention.
  • The operation ended with a third party with whom the agent had promoted and / or a similar professional activity completed before.
  • Given the exclusive agent for a particular geographical area or persons Sector, when commercial operation is concluded with any person relating to the area or industry attributed to the agent. In this case the fee will accrue if the operation did not intervene or agent has concluded.

 Acts or transactions concluded after the termination of the agency contract (art. 13 LCA):

In these cases, the agent will commission if:

  • Commercial operation had been completed thanks to the activity of the agent during the contract period. So good, It will be a prerequisite for this course, commercial operation is completed within the first three months following the termination of the agency contract.
  • The agent or the employer have been commissioned before the end of the agency contract. And, in any case, if in that case the agent would have been entitled to receive the commission after the conclusion of the operation during the contract period.

But, the agent is not entitled to commission for the completion of an operation during the term of the contract, when this corresponds to the professional activities of an actor. With the exception that, analyzed the circumstances, it was reasonable to share the commission between the two agents.

As to payment commission, according to art. 16 LCA, this must be paid to the agent later than the last day of the month following the calendar quarter in which was accrued. With the sole exception that, using the principle of party autonomy, pacta had a shorter period.

Exclusivity in the agency agreement

When we talk about exclusivity in the agency agreement we must distinguish two cases.

First, exclusivity referred to the agent can only develop their professional activity in respect of an entrepreneur. The art. 7 LCA determines that, As a rule, the agent can work simultaneously to several entrepreneurs. So good, the parties may agree exclusivity in the agency agreement.

Second, the post contractual competition ban on the agent. The Arts. 20 and 21 LCA establish that, if the parties so agree, They may be included in the agency agreement a ban on post contractual competition. Compliance with this obligation should be carried to term after completion of the contract. This is a restriction or limitation of professional activities to be performed by the agent once it has ended the contract with the employer. Namely, is no competition to the main trader for which he worked.

The LCA provides a maximum and that can not be attached to a longer period 2 years from extinction agency contract. But if the contract has been agreed for a shorter period of time, the maximum duration of the prohibition of competition may not last longer than 1 year.

So good, this prohibition to be valid, It must be in writing and may only cover the geographical area and / or group of persons and goods or services that were entrusted to the agent to develop professional activity, according to art. 21 LCA.

Duration of the agency contract

The art. 23 LCA is the duration of the agency contract and may be for time determined or time undefined.

If the parties had not agreed on an express term in the contract, It is deemed to have been agreed indefinitely.

Termination of the agency contract

To determine when it is extinguished an agency contract, We must meet the agreed duration.

Agency contracts by given time They shall be extinguished by the expiration of the term agreed.

But, If after the deadline, the contract is still running, the agent continues to carry out their professional activity and the employer meets its obligations, it is understood that the contract is transformed into one of indefinite duration (art. 24 LCA).

 Agency contracts by undefined time They are extinguished by the unilateral termination of either party by forewarning necessary in writing.

But there is another cause of termination of the agency contract outside its duration: Death extinction. The agency agreement will be terminated by the dead or declaration of death of the agent. So good, It will not be extinguished when death or declaration is about the entrepreneur. The successors of the deceased employer may request the termination unilaterally fulfilling the notice according to the characteristics of the contract.

The period of notice in the agency agreement

Agency contracts required indefinitely the need to communicate the termination of the contract with a minimum: It is called “forewarning”.

The notice period required by art. 25 LCA will be, one month for each year of contract, with a maximum six months. But, if the agency agreement had a duration of less than one year, the notice period is one month. The parties may agree longer periods of notice but, never lower than those set by law.

This prior notice is not absolute and may be extinguished (art 26 LCA). Thus, each of the parties to the contract may terminate it (either a specific time or indefinitely) when the counterparty:

  • any breach of its legal or contractual obligations, total or partial.
  • It has been declared bankrupt or declared admissible your competition.

Compensation in the agency agreement

Clientele Severance

The art. 28 LCA provides for compensation to the agent after termination of the contract by new customers contributed to the employer or by the increase in operations with existing customers. But the compensation will only occur if, after the termination of the contract, the employer benefits from these advantages you carried out by the agent.

It is important to mention the STS 4 January 15 November 2010 and 11 November 2011, in which it is set as jurisprudential doctrine "compensation for customers testify not only that the agentity would have brought new customers or significantly increased operations with existing customers and equitable compensation resulting from the commissions to lose, but also that the above agent activity You can continue to produce benefits to the entrepreneur, also they are to be substantial.

The right to compensation also exists in cases where the contract is extinguished by death or declaration of death of the agent.

So good, the law sets a ceiling for compensation and that may not exceed annual average amount of remuneration received by the agent during the last five years or, if the agreement hath a duration of less than five years, throughout the duration of the contract. But, as the SAP pointing Pontevedra 7 March 2009, “the maximum compensation does not automatically operates ".

Compensation for damages

Compensation for damages is regulated in art. 29 of the LCA. It is generated in cases where the employer terminates the contract of indefinite agency in advance. The compensation effect arises from the Damage to the agent unable to recoup the investment and expenses incurred in the performance of the contract.

This compensation shall not apply in cases where the agency contract has a fixed term as, in these cases, the agent itself can provide for the repayment of their investment or not.

So good, compensation for a successful investment, SAP in Madrid 15 November 2017, It requires the combination of two requirements:

  • On the one hand, that (investments) they have been ordered or instructed by the principal, and,
  • Other, who have no use for the agent in any other activity other than that it was the object of the agency "

This criterion is detailed by the STS 29 October 2013, saying "are only compensable expenses or investments caused to implement or adapt their business, according to the express or implied instructions of the employer, that they had not repaid the extinction ratio. Thus, where investments can be designed to serve other entrepreneurs or used for personal gain, decays the raison d'etre of compensation by so-called "confidence expenses". Add the STS 30 May 2016 que “Redeemable investments are those relating to fixed assets and expenses that will be distributed over several years. It was a compensation for damages, no loss of profits (…) and only the so-called <<specific investments>>, namely, which they lose their value upon termination of the contract ".

But, jurisprudence adds a third reason for exclusion of compensation. Y es que, compensation is not available when the resolution is produced by a breach of the obligations of the agent.Thus STS 12 de noviembre del 2010 determines that "Nor it can support a hypothetical estimate in the art. 29 LCA because they oppose the provisions of art. 30, a) and b) LCA, who died and breached the contract can not claim compensation for it is in the precepto- ".

Compensation for breach of notice

Breach of the duty of notice Indefinite contracts can lead agency agent right to compensation for damages caused.

In this sense, the STS 18 July 2012 notes that "in our legal system the parties have the power to unilaterally opt out of contracts of indefinite duration, despite which, the duty of loyalty whose singular significance in the trade highlights the art. 57 Commercial Code, requires that the party seeking to withdraw unilaterally without cause preavise to the contrary even when it is not expressly provided, in accordance with the provisions of art. 1258 Civil Code, except in the event reasonable cause to omit such communication”.

This notice is the duty of collecting art. 25 LCA contracts of indefinite agency, legitimation also found in the general rules of the Civil Code (Arts. 1089 and 1101).

AP Barcelona, in Case 28 January 2019 Fixed the cause of compensation, so that: “compensation in lieu of notice attends a breach of contract of the company that has not allowed to know the agent of its intention to terminate the contract with time needed that so you can target your professional activity once the contractual relationship cease seeking new sources of revenue to cover the loss resulting from the termination of the contract ".

But, so you can actually claimed compensation in lieu of notice, “the damage must be real and it can be quantified. It will be necessary to evaluate the case to sense whether or not entitled to compensation " (SAP Girona 20 March 2019). So it does not operate as an automatic claim to compensation. You have to prove the reality of the damages because the omission of notice not generated imperatively.

Deadlines for claiming

The action to claim compensation for damages and clientele, prescribe within one year from the termination of the contract, according to art. 31 LCA.

So good, Article. 4 LCA provides that the remaining shares arising from the agency contract shall be governed by the provisions of the Commercial Code. But, This reference to the Commercial Code and specifically to the arts. 942 a 945 It is generic. So you have to go to art. 1967 CC, which establishes a limitation period three years that, according to the STS 24 February 2017, “the initial day of calculating the limitation period of three years, It is the day that stopped lending services ".

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