Requirements for compensation for customers in the agency agreement

 contrato de agencia

 

Increased customer, agent activity and subsequent benefit of the company are requirements for compensation for customers in the agency agreement

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To generate the right to compensation for clientele must meet certain requirements. Must have an increase in customers,  the agent should have developed an activity,  and upon completion of the agency contract, the employer must continue to benefit from his performance.

In this post we review the sentence of Section 1 of the Provincial Court of Girona 12 July 2019, with No.. resolution 507/2019 in which the legal requirements for compensation are analyzed by customers in the agency agreement.

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

In 2010 an agency relationship between the distributor MORATO SPAIN SL and the company began SPA ESSEDI.

The 1 June 2013 ESSEDI textile distribution (onwards, CHARIOT) He signed an agency agreement with FERRAN MODA S.L.. So, FERRAN MODA marketed on behalf of ESSEDI brand products "Antony Morato".

14th clause of the contract added that "for the purpose of proceeding, if, a possible compensation for customers, the parties agree to be taken for calculation as the starting date agent activity, the 1 September 2012 ".

Finally, ESSEDI unilaterally terminated the agency contract.

Given these facts, FERRAN MODA lawsuit filed. Requested payment 83.765,31 euros. Amount answered:

  • 64.917,55 euros to settle unpaid commissions,
  • 76.285,49 euros for compensation for clientele,
  • 481,00 euros notice the difference.

These amounts were deducted 57.918'73 euros for amounts owed to the defendant.

Primera Instancia

The 28 December 2018, the Court of First Instance gave judgment nº5 of Girona partially upholding the complaint filed by FERRAN MODA.

Of the requested amount was deducted the sum of 57.918,73 euros for amounts owed the plaintiff to the defendant.

He condemned the judge to ESSEDI to pay 20.909,29 the plaintiff euros; corresponding 16.594,45 euros compensation for customers.

Provincial Court

Instance judgment against, the plaintiff appealed. He set himself the sole ground of the amount of compensation for customers.

The 12 July 2019, Section 1 of the Provincial Court of Girona gave judgment partially upholding the appeal.

The appellant claimed that for calculating compensation for clientele take into account commissions received prior to 1 September 2012.

The Court concluded that this claim could not be accepted.

The 14th clause the contract itself limited the calculation, setting a start date. The clarity of the covenant It was therefore indisputable, there were no legal reasons to consider the clause as null no right to compensation was limited. But, just now noticed the onset of the effects of the contract.

He considered the arguments of the judge correct instance on legal personality distinct from both distribution companies. The new agency contract year 2013 It was signed with another company (CHARIOT distribution TEXTILES) whose legal personality was different from the previous (ESSEDI SPA).

Also, There was no subrogation by the defendant on the obligations of MORATO SPAIN SL.

The first instance judgment reasoned that not met the requirements for the granting of compensation for customers.

The Court departed from that ruling and revised the legal requirements:

a) The first was a legal requirement increase customer. This requirement kept close connection with the use, by the employer, the advantages that activity you can continue to produce.

The Court confirmed that this requirement was met in the case.

He could not be counted for calculating compensation activity actor to 1 September 2012. But if you came to note that the agent had a client who contributed to the activity. So that, businessman, terminate the contract after enjoying a substantial sales was the result of the activity performed by the agent.

The Court noted that, “apparently, the brand itself or campaigns that can make the owner of the trademark are relevant to the consolidation of a customer, but this does not prevent to recognize that the applicant when the contractual relationship began, contributed a clientele and increase during the contract period. Or you have not been substantially increasing customers ... does not preclude recognizing the legal requirement for granting compensation, because the defendant will benefit from a portfolio of clients who did not have when the agency agreement was signed.

b) The second requirement was conducting operations or sales agent.

When the respondent was incorporated as distributor, without any infrastructure, the agent had a consolidated customer portfolio remained. Forever, logically with periods of high and low, but with a net increase over the years 2013 and 2014. Therefore, the Court concluded that the requirement also concurred.

c) The third requirement was going to take into account the existence of agreements limiting competition, the commissions lost the agent or other circumstances.

In the eighth clause prohibiting agent representing stipulated throughout the duration of the same products, Similar or competitors. Therefore, stipulated one limiting competition.

That the limitation was not absolute, may represent other brands or products are not competitors, It did not imply that there was no limitation of competition.

Termination of the contract also meant the loss of relevant commissions for the agent for the year 2013 They were of 63.887,98 euros and 2014 of 92.984,53 euros.

The Court did not appreciate reasons or justification for termination of the contract which may limit or exclude compensation.

d) The last legal requirement referred to complete the activity by the agent, the employer could continue to benefit from the advantages produced by him.

The Court considered that in the case also concurred that requirement. Specifically, the employer took advantage of all that was provided customers and providing the agent during the relationship.

The Court referred to the art. 28.3 of the Law of Agency Agreement on limiting compensation for customers: “3. The compensation may not exceed, in no case, the annual average amount of remuneration received by the agent during the last five years or, throughout the duration of the contract whichever is lower ".

So, They had counted all commissions received, they were new or old customers, but since September 2012 be agreed by. What was the legislator fixed maximum compensation, which could be lower in view of the various circumstances that concur.

Therefore, the Court held that all the conditions provided for by law to meet the compensation for clientele. thus resulting from fixing the compensation sought by the appellant in view of the fees received during the contract period and amounted to 41.189,14 euros.

The Court upheld the appeal of existing appeal and partially overturned the ruling instance, setting the compensation 42.019,15 euros.

Conclusion

The right to compensation for clientele arises from the contribution by the client agent, sales and operations which, after the end of the contractual relationship,   the employer has continued to benefit.

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