logo
ang-top-sx   ang-top-dx
   




  

ang-bot-sx   ang-bot-dx
studio collaboratori pareri dello studio aree di attivitą dove siamo
ang-top-sx   ang-top-dx
  legal advices

Object: ?payment of agent commission?

On November 9, 2006, W. S.p.A., a joint stock company, requested a legal opinion on the interpretation of a contract of agency jointly subscribed on June 2, 1995, with Mr. C.C., agent, particularly concerning clause 6, on the payment of provisions.

As for agency, Art. 1748 of the Civil Code regulates the rights of the agent, establishing that:

"For all deals closed during the period of validity of the contract, the agent has the right to a commission when the operation was concluded on account of his intervention.

The commission is due also for deals closed by the principal with third parties which the agent had previously acquired as clients for deals of the same kind, or belonging to the same area, category, or group of clients reserved to the agent, unless differently agreed upon.

The agent has the right to a commission on deals closed after the termination of contract if the offer was received by the principal or by the agent at a time prior to the termination of contract, or if the deal was closed within a reasonable period of time from the date of termination of contract, and was attained chiefly as a result of the agent?s activity; in such cases the commission is due only to the previous agent, unless specific circumstances show that it would be fair to divide the commission among the various agents involved, if more than one.

Unless differently agreed upon, the commission is due to the agent from the moment and in the measure in which the principal has effected or should have effected the service, according to the contract jointly subscribed with the third party.

The commission is due to the agent, at the latest, and without fail, from the moment and in the measure in which the third party has effected or should have effected the service, should the principal have rendered the service on his behalf.

In case the principal and the third party should agree to not give, in whole or in part, execution of the contract, the agent has a right, for the part unexecuted, to a commission reduced in the measure determined by the use of the same, or, in absence of such use, to a portion allotted by the Judge in equity.

The agent is required to return the commissions collected only in the instance and in the measure in which it can be ascertained that the agreement between the third party and the principal will not be executive on account of causes not imputable to the principal. Any agreement of greater disadvantage to the principal is considered void.

The agent may not claim any refund of agency expenses."

The text of the article here examined was subject to deep changes in the course of time. The original formula recited, under the heading "Rights of the agent", the following text:

"The agent has a right to a commission only for deals that have undergone regular execution. If the deal was only partially executed, the commission is to be paid to the agent only in proportion to the part effected.

The commission is due also for deals closed directly by the principal, which execution takes place within the area reserved to the agent, unless differently agreed upon.

The agent may not claim any refund of agency expenses."

This text was later modified through the Legislative Decree of September 10, 1991, No. 303, issued in compliance with EU directive No. 653/86, concerning the coordination of member state laws on independent commercial agents. The decree changed the heading "Rights of the agent" with the formula "Rights of the agent and obligations of the principal", and added paragraphs 3 (the former paragraph 3 was listed as 4 in the text modified), 5, 6, and 7.

The current text is the result of the recent modifications introduced by the Legislative Decree of February 15, 1999, No. 65, in line with the findings of a reasoned opinion, issued on July 13, 1998, by the European Commission, and fully meets the contents of directive 653/86. The object of Art. 1748 is once again limited to the discipline of the agent?s rights only, where the obligations of the principal are now listed in article 1749.

The delegated decree of 1999 has profoundly changed the specifics of the right of commission: if it was previously connected to the concept of regular execution or full realization of the deal, with the right of commission arising at the moment of payment by the client, today is applied a wider criterion, as it appears evident in the 1st and 2nd paragraph of Art. 1748 of the Civil Code, amended by Legislative Decree in observance of the European Community directive of 1986.

The most innovative aspect of the reform concerns the moment at which the agent acquires the right to the commission: at the moment and in the measure in which the third party (the client) has performed or should have performed the service, in case the principal has effected the service on his behalf. In other words, the discriminating factor for the acquisition of the right on the commission resides, after the 1999 amendment, on the execution of the services rendered by the principal, and not by both parties.

The agent, furthermore, must be provided with a statement report of all commissions collected, expressed in one single amount, but with an indication of essential elements, functional to their calculation. Such statement is to be presented to the agent no later than the last day of the month following the quarter of reference ? that is, the maturation of the same commissions; a term before which the agent should receive payment of the commission, as per paragraph 6, Art. 1748 of the Civil Code.

In any case, the contract placed under our examination is compliant with the current normative provisions, regardless of the fact that it was subscribed to on a date preceding the reform, as it included that: "The principal shall hand the agent the statement of all commissions due by, and no later than, the last day of the month following the quarter during which the commissions have matured. At the same time, the agent shall receive the relating certification of payment."

The following inciso conditioning the payment of commissions to the actual incasso by the principal of the single transactions, is to be considered a prescription void at all effects, and, therefore, W. S.p.A. may not validly affix it nor use it to its advantage.

Likewise, the following art. 7 of the contract, with the heading "DEL CREDERE CLAUSE" is to be considered void.

The new formulation of paragraph 3, Art. 1746 of the Civil Code, states that: "An agreement laying on the agent the liability, even partial, for the default of the third party, is forbidden. The parties may, exceptionally, agree on each single instance, on the concession of a special guarantee issued by the agent, as long as it happens with reference to single deals, of specific nature and amount, individually determined; the pledge of guarantee undertaken by the agent may not amount to a sum exceeding the commission the agent would have right to collect on that same deal; a suitable compensation may be arranged for the agent."

Based on the discipline prior to the recent amendments introduced by the 1. December 21, 1999, No. 526, the parties were granted the option to add to the clauses of the contract the special agreement of "del credere" clause, through which the agent personally accepted one part of the risk born by the principal, meaning that it answered, against the principal, of a possible default of the third party, though such liability is contained within a limited percentage.

The collective contract, in force towards all has always limited the agent?s liability contained in the "del credere" clause to a percentage, capped by the value of the deals: Art. 6 of the collective contract of June 20 1956, made effective towards all through the Presidential Decree of January 16, 1961, No. 145, determined the measure of twenty percent at the most, and only on particular cases did it admit to agree on a higher ceiling, on condition that a bonus over the ordinary commission be agreed upon. The following collective economic contracts di diritto commune (Agency and Commerce National Collective Contract of December 16, 1979, for agents in the "industrial" sector, and Agency and Commerce National Collective Contract of June 24, 1981, for agents in the "commercial" sector), binding only for those adhering to stipulating associations, have reduced the measure specified in the "del credere" clause to fifteen percent, and have indicated that the agent is not to be considered liable for the expenditures incurred by the principal for the recovery of the credit.

According to paragraph 3, Art. 1746, introduced by Art. 28 of December 21, 1999, No. 526, the agreement with which the parties introduce, in the contract, the liabilities, even partial, of the agent for actions performed by the third party, is generally forbidden. Such possibility is admitted only in extremely restricted circumstances, and it is anyway bounded by a number of cautions designed to prevent the obligation to become exceedingly burdensome for the agent. In fact, the parties are allowed to include in the "del credere" clause, only as reference to single deals, individually determined, and of a specific nature and import, in which, in other words, the weight of the deal justifies the resort to such additional security measures for the principal. A compensation to be paid to the agent granting guarantee must also be included, in which the parties, lacking a specific legislative provision, are free to agree on entity and method of compensation. Furthermore the law determines the maximum measure of the agent?s liability, which may not exceed the amount he has a right to receive as commission. The negotiation relating to the "del credere" clause, according to the general rule contained in Art. 1742, must be proved in writing.

By the doctrine quoted we would like the draw attention to the fact that any contractual clause, even differently structured or qualified, resulting in placing the liability for the third party?s default on the agent, will risk being declared void, diverging from paragraph 3, Art. 1746. On the other hand, clauses in which the agent undertakes to keep specific minimum quotas as to number of solvent clients should not be in violation of the limits imposed by the "del credere" rules, as long as their non-realization will not derive in consequences differing from the reimbursement of damages suffered by the Principal, such as the Principal?s faculty to solve the contract for default, or the loss of economic advantages, such as a bonus, for the agent.



Back to legal advices

 
ang-bot-sx spacer ang-bot-dx
ang-top-sx spacer ang-top-dx
  studio legale tasca
MILANO 20129, Piazza Cinque Giornate n.3 Tel: (39) 0254100378 - 5466066
ROMA 00195, Via XX Settembre n.26 Tel: (39) 06 42016234 - 42391396

Vat number: 11157430155
 
ang-bot-sx   ang-bot-dx