Indemnizacion por Clientela en el Contrato de Distribucion

contrato distribucion

 

Is viable compensation for customers in distribution contracts

 

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Analog application to contracts for distribution of compensation for customers under Art. 28 of the Law of Agency Agreement possible. However, its application is not automatic, it is necessary to prove the existence of creation clientele and their use by the grantor entrepreneur.

In case we reviewed in this post, It was held one distribution verbal contract. It was resolved by one party without just cause and is affected,. The distributor requested compensation for customers, for the damages suffered by the stock could not be sold and the loss of margin trading.

The 14 June 2019, 19th Section of the Provincial Court of Barcelona He dictated his ruling 333/2019, partially estimating demand.

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

RAIDLIGTH VERTICAL SAS, French company created in 1999, is engaged in the manufacture of sportswear for "Trail Running" under the brand RAIDLIGHT.

DEERFOOT-SPORT SL, Spanish company founded in 2001, distributing sports brands. His clients were sports stores retail spread throughout the Spanish territory.

Since the year 2005 DEERFOOT RAIDLIGHT began distributing the brand in Spain as an exclusive. This is because there was no other distributor in Spain of the mark. So good, DEERFOOT did turn to the distribution of other sports related brands running but not specialized in the "Trail".

DEERFOOT bought the RAIDLIGHT products brand for resale. Conducting campaigns promoting the brand and attended customer claims and after sales service.

RAIDLIGHT terminated the contract de facto. The resolution was materialized in July 2013. So, He filed an action for payment against DEERFOOT. He requested the payment to the genus supplied amount 32.640,68 euros. The applicant in the preliminary hearing rectified the sum 26.399,08 euros.

Counterclaim made DEERFOOT. He alleged that there was a verbal agreement exclusive distribution regarding products manufacturer. And, This was resolved by the applicant is affected,, therefore there is losses on stock ownership. Also, solicitous:

  • Compensation for customers by the amount 21.268,26 euros. DEERFOOT had generated a clientele in favor of the applicant and this had taken advantage of the clientele created.
  • Compensation for damages for the stock Unrealized 23.653,93 euros.
  • Compensation for damages for loss of business margin 4.605,55 euros.

Primera Instancia

The 3 March 2017, the Court of First Instance of Cornellà de Llobregat gave judgment upholding in full the demand made by RAIDLIGHT against DEERFOOT commercial and dismissing the counterclaim of the latter.

He ordered the defendant to pay the sum of 26.399,08 euros.

Provincial Court

DEERFOOT appealed. He alleged the existence of Exclusive distribution contract between the parties since 2005. RAIDLIGHT exclusivity existed since sold its products in Spain for resale only through the defendant. And this, only acquired through manufacturer-applicant. He added that the contract was terminated unilaterally RAIDLIGHT. Mail 16 April 2013 the manufacturer's intention to break the contract was clear. He reiterated the appropriateness of compensation for customers, for damages for not stock and loss of profit margin.

On exclusive distribution contract.

The Court referred to the SSTS 19 May 2017, 15 March 2011 and 11 November 2008, defining the distribution contract: “the Exclusive distribution contract, that, despite being atypical, by lack of self-regulation, by its frequent use it has helped to achieve a social classification, and scientific and jurisprudential doctrine have highlighted the most important elements ...: (i) the distributor It is acting on behalf own, assuming the risk of scalping… (ii) the remuneration Dealer ... consists resale margin of the products sold by the supplier ...(iii) The contract is to promote the distribution or resale of products, encouraging their placement on the market ...(iv) its commercial contracts continued duration and usually adhesion ...(in) are contracts usually involve a transfer of intangible property rights (brands, logos, know how); (we) contracts are based on the confianza, in view of the technical capabilities and professional distributor; (vii) typically between manufacturers and retailers governing a reciprocal exclusivity, in relation to the assigned area where you can not sell that and competing products that may not market the latter (STS 5 October 18 December 1995).

On selective distribution indicated that the room: "It is a partnership agreement that It is characterized by the commitment of the supplier to sell the contract goods only to dealers by the chosen... and does not sell such goods to independent distributors or unauthorized ... ".

In this case, the distributor in Spain of the brand RAIDLIGHT did not have the exclusive on its negative side. Namely, the prohibition on marketing other sports-related products running. The plaintiff addressed the particular segment of "Trail Running”, without thereby losing the relationship condition collaboration selective distribution.

The Court also cited the STS 18 May 2009:  “also It is a common feature of partnership contracts ... with or without exclusive, and that unlike a simple concatenation indefinitely purchase agreements, securing the partner regarding the main employer (…) even when not bound by a pact of two businessmen exclusive”.

Therefore, It was necessary in distribution contracts that the distributor shall be subject to the power of decision, direction and supervision of the principal employer.

In this case,  DEERFOOT toward resale of the brand in Spain exclusively. The fact that it also distribute other sporting goods other brands related to running, not detracted from the legal distribution relationship that bound the parties. This fact was known by the manufacturer.

For Hearing, It was about a verbal selective distribution agreement exclusively for the territory of Spain between RAIDLIGHT and DEERFOOT. That agreement did not prohibit the distribution market and distribute DEERFOOT other sports brands.

On the termination of the distribution verbal.

There was a de facto contract termination by the manufacturer, materialized from July 2013, even when she not specifically informed the distributor.

This resolution was not due to just cause for breach of obligations, but the business decision maker. RAIDLIGHT decided to move from selective distribution through DEERFOOT to distribute their products directly with a new trade representative. Dicha decision was legitimate, but it implied accredited compensate losses caused to the distributor.

He was not substantiated any of the alleged breaches RAIDLIGHT in an email April 2013 pointing as a solution to the relationship. This test was charging merchant RAIDLIGHT. ,

RAIDLIGHT decided the breakdown of the distribution ratio de facto, without communicating it in writing via fait accompli. He went on to distribute their products directly from France the parties without any agreed solution on the closure of the distribution ratio.

There was a facto resolution with or without cause breach of fair dealing by RAILDLIGHT.

On compensation for customers.

For Hearing,  the Supreme Court had not denied the possibility of analogous application to contracts for the distribution of the rules of the agency contract.

STS 29 July 2007 noted that "compensation for clientele is not exclusive agency agreement ... it can be your appraisal possible when appropriate circumstances arise, in other atypical contracts, y entre ellos, the concession or distribution.

In the STS 22 June 2007 noted that "for analog application the precepts of the LCA on compensation for customers ...It requires identity of reason…so that…You have to be a situation of substantial legal equality”.

STS 15 January 2008 He said "the analogous application of the inspiring idea of ​​art. 28 LCA, You can not obey mimetics criteria or automation”.

Therefore, the plaintiff seeks compensation must prove that the effective contribution of customers and their potential use by the grantor.

The Court considered that, “para establecer la cuantía de la indemnización por clientela, It is to be used as a guiding criterion laid down in art. 28 LCA, ... but calculated on net profits earned by the distributor ... this is, el porcentaje de beneficio que le queda al distribuidor una vez descontados los gastos y los impuestos, y no sobre el margen comercial”.

In this case,  It was established that the clientele created by DEERFOOT had been used by RAIDLIGHT. After the break, RAIDLIGHT obtained approximately more than half of customer billing provided by DEERFOT.

So good, the requested compensation should be reduced to half the amount. Specifically, the sum 10.634,13 euros.

On compensation for damages by the stock Unrealized.

The Court referred to the STS 14 December 2006, for which he was admitted "the possibility of compensatory damages in the case of unilateral termination of the distribution contract of indefinite duration, but there has been demands constitutive disloyalty in bad faith or abuse of law (…) breach of good faith, in such a way that surprising or unexpected reaction leaves no room to the other party.

So, It had to make integration contract under the principle of good faith and according to the circumstances.

The distributor was entitled to demand compensation for damages by the stock of brand products had not been able to sell. And this protected by the application of art analog. 29 LCA and under art. 1100 ff. CC.

However, Hearing understood that the compensatory amount should be moderated. He applied a reduction coefficient of 50%, so that the amount payable was 11.826,51 euros.

On damages for loss of profit margin.

the distributor, after termination of the contract facto, He did not confer a deadline in order to regulate purchases and sales and output of products purchased. The distributor proceeded to sell at cost. The Court concluded that the appellant should be compensated in the amount claimed, this was 4.330,72 euros.

Ultimately, the Court upheld in part the appeal filed by DEERFOOT. It reversed in part the judgment under appeal. partially granted counterclaim DEERFOOT. He condemned RAIDLIGHT to pay the total sum of 26.791,36 euros en concepto de compensation for damages by customers and unsold stock. And the embroidery, DEERFOOT should return the stocks held in your store RAIDLIGHT.

Conclusion

The compensation for clientele provided for in art. 28 of the Law of Agency Agreement may be applied, analógicamente, a los distribution contracts. While this application can not be automatic, must prove the effective contribution of customers and the use of these by the grantor.

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