Improving conditions in the Agency Agreement

contrato de agencia

 

In the agency contract are valid pacts conditions improve on the legal minimum

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The art. 1.255 of the Civil Code allows the parties can subscribe covenants and clauses in those cases not provided for by law compensate.

9th Section of the Provincial Court of Madrid in Case 26 September 2019 Res. No. 450/2019, He has solved one of these lawsuits for Agent. The parties agreed to the perception by the agent compensation to the termination of the contract. But, this right to compensation would disappear if the resolution was produced for breach of the same. Now, in the contract is not collected if the right to compensation also extinguished in case of unilateral termination of the contract agent, as it happened. The Court concluded that whenever had not terminated the contract for the cause of intended exclusion, the agent was entitled to demand fees. And, further said compensation pact was perfectly valid because freely pactaba more beneficial compensation for the agent than expected legally.

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

He held a Agency agreement Bank of New S.A. Meridia branch in Spain and Partners S.L..

A clause in the contract was agreed, namely the second, containing the agent right to compensation for termination of the contract. Only prevented disappear compensation if the contract ended for breach of the agent itself.

After a while the contract concluded by unilateral withdrawal of agent, who subsequently he requested the payment of the compensation agreed.

Novo Bank refused to the pact claiming compensation for unilateral termination that resolution did not generate any compensation right.

Meridia Partners S.L., lawsuit filed against the entity.

Primera Instancia

The 8 January 2019 el Juzgado de Primera Instancia nº 52 Madrid gave judgment dismissing the lawsuit.

The sentence appreciated that she attended one unjustified unilateral withdrawal of the agent which was communicated the 16 February 2017, as, as agreed in the contract and art. 30.b) de la Ley del Contrato de Agencia (LCA), no room to receive commissions agreed.

Provincial Court

The applicant appealed against the judgment at first instance, whose motives were:

1No. Error in assessing the evidence and infringement of the arts. 1.281 ff. del Código Civil y la jurisprudencia que los desarrolla.

The appellant claimed that, con una literal interpretation 2nd clause of the contract, It was clear he was entitled to compensation sought. And this, whatever it was she who gave up the contract.

2º Violation of arts. 3, 28 and 30 of the Law of Agency Agreement.

For the appellant, the Commission under the contract It was not a pact compensation for customers, but a pact compensation for termination of the contract signed for the protection of the art. 1.255 CC. Upon termination of the contract the agent,  provided that no resolution should occur for breach of the agent, it was entitled to demand fees that had accrued prior to the date of termination and, further compensation.

you were not applicable articles relating to compensation for customers.

And, even if they really were compensation for customers, It should be considered as a agreement covered by Article. 3 of the LCA.

In any case, It concluded that the requirements were given the arts. 28 and 20 LCS to appreciate their right to compensation for customers.

The 26 September 2019 9th Section of the Provincial Court of Madrid ruled on the appeal.

About 1 plea:

2nd clause of the contract provided for an indefinite period of the contractual relationship.

Also, provided that either party could withdraw from the contract with one month's notice. So good, I could not give up unilaterally by the Bank before the 2 January 2017, except for a breach of contract agent.

The clauses also determined that, provided that no contractual termination for default were to occur agent, “it was entitled to demand fees accrued prior to the date of termination and, further compensation”.

The amount of such compensation should be calculated on a scale downward since 2013 to the 2020 and on fees accrued.

Therefore, the clauses exempted compensation resolution for breach of contract agent, but nothing was said in case of withdrawal of the agent.

The Court concluded that, with a interpretación literal del contrato, it should share the thesis of the appellant on the covenants of the parties

On the 2nd plea:

The Court recalled the ruling of the Supreme Court 582/2010, of 8 October 2010, who played the art. 3.1 LCA. It was a case in which compensation was agreed to exceeding the limit provided by art clientele 28 LCA. The ruling resolved so that the compensation "only will apply to the judge in case of conflict between agent and principal after termination of the agency contract ... because Article. 19 Directive, and therefore also the art. 3.1. LCA, does allow prospective agreements that are not to the detriment of the commercial agent, and will not be detrimental to any agreement that recognizes the agent a right to compensation for clientele in an amount greater than this maximum.

He then considered whether the Commission had agreed in the 2nd clause of the contract had as compensation for customers. And if so, if the parties could reach agreements providing for compensation for customers in case of withdrawal of the agent, obviating the provisions of art. 30 LCA.

So, in clause 2nd b) the term of the contract compensation is not used. But it was called to compensation as "compensation for termination of the contract ".

This remuneration is provided for cases of termination of the contract or a legal imperative, and only it excluded in the event of termination for breach of the agent.

Also, expressly it indicated that these quantities would compensate the agent provided by the customer.

It could be understood that, this commission for resolution, the contract intended to cover compensation for intended clientele in art. 28 LCA. So there was no ascribing different nature to the compensation agreement agreed to operate in the extinction of the contract and thus compensate the agent for customers provided.

However, 2nd clause established a more beneficial pact for the statutorily prescribed agent. This is because only excluded compensation in case of termination for breach of the agent.

She hearing again recalled the sentence 582/2010 of the STS why "the anticipated agreement on commissions perceived in any event of termination of the contractual relationship is as valid under Article. 1.255 CC”.

So the declaration of validity of the clause led to understand that there had been a case referred to in the contract generator compensation to the agent.

He came estimate the appeal and recognize the agent agreed compensation in the amount of 180.500 euros.

Conclusion

Any agreement on the agency contract on commissions or remuneration established more beneficial legal conditions for the agent, must be counted as valid under Article. 1.255 CC.

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