Polish Supreme Court ruled that, pursuant to the Polish Civil Code, payment of the commission is a necessary element of the agency agreement and that del credere clause is valid, provided that the agency agreement stipulates the remuneration for the agent.
The court of first instance, ruling on the claim of the principal against the agent for reimbursement of paid commissions, dismissed the claim. The court established that the parties cooperated on the basis of an agency agreement, pursuant to which the defendant undertook to act as a permanent intermediary in concluding lease agreements for the benefit of the claimant, for remuneration. The parties agreed that in the event that a party to a lease agreement concluded through the intermediary of the defendant is in delay with payment of one of the first 3 installments for more than 60 days, the plaintiff would have the right to demand reimbursement of the commission paid to the defendant for intermediation at the conclusion of such an agreement. During the term of the agreement, the claimant paid to the defendant, among others, a commission for acting as an intermediary in concluding four lease agreements, where the party (client) was in delay with the payment of the third lease installment or did not pay one installment. The court of first instance classified the agreement between the parties as an agency agreement and decided that the agent may assume liability for improper performance of the agreement by the client, only for a separate remuneration (commission del credere). Since the parties - contrary to Article 761(7) § 1 of the Civil Code - did not provide for a separate remuneration for the defendant, the imposition of additional liability in this respect is null and void.
The Court of Appeal dismissed the claimant's appeal and the plaintiff filed a cassation complaint with the Supreme Court.
The Supreme Court noticed that the plaintiff's allegations concern the issue of whether the agent may accept liability for the performance of the contract by the client of the principal in the agreed scope without separate remuneration (del credere commission), and whether the parties may - without regard to the provisions of Article 761(7) of the Civil Code - hold the agent liable for the non-performance or improper performance of the obligation by the said client. The Supreme Court confirmed that the parties to the proceedings concluded an agency agreement (called "representation agreement") regulated in Articles 758-764(9) of the Civil Code. Therefore, the modification of the contractual relationship between them, was limited by the ius cogens and semi-imperative provisions regulating the agency agreement, which protect the agent. As a rule, the agent is not liable for the execution of an obligation by the client. Also, the agent's commission, as a rule, is not dependent on the performance of the contract by the client.
The contractual provisions, according to which the claimant has the right to demand reimbursement of the commission paid to the defendant under the concluded lease agreement, when the lessee is in delay with payment of one of the first three lease installments for more than 60 days, lead to the agent being held liable on a risk basis for improper performance of the lease agreement by a client, up to the commission paid to the agent. Such a contractual provision is invalid both from the perspective of del credere liability (Article 761(1) § 1 of the Civil Code), the remuneration-based character of the agency agreement (Article 758 § 1 of the Civil Code) and the possibility of depriving the agent of the right to remuneration only in strictly defined circumstances (Article 761(4) of the Civil Code). It is contrary to the ius cogens Article 761(7) § 1 of the Civil Code, which allows the agent to be held liable for the performance of an obligation by the client in the agreed scope only for additional remuneration. The purpose of this provision is to indemnify the agent against unlimited liability for the performance of all contracts concluded by the principal during the agency's relationship and against the passing on to him, without equivalent, the risk of non-fulfillment of the client's obligation.
As a rule, the agent has the right to a commission for leading to the conclusion of a contract and - subject to Article 761(4) of the Civil Code - this right is independent of the performance of the contract by the client. Since the agent may assume responsibility for the performance of the client's obligation by incurring the obligation of del credere, such liability cannot be borne by the agent by virtue of the agency agreement itself.
The agreement in question did not only not provide the defendant with the right to additional remuneration, but also provided for his liability without the need for damage suffered by the claimant, since the agent was obliged to reimburse the commission for the very fact that the delay occurred. In such a construction, it may happen that the claimant would obtain all the services due from the client, would not suffer any damage, and in addition, would not only not pay the agent a commission for assuming responsibility for the client's performance of the obligation, but would deprive the agent of the right to commission for the provision of intermediation services, and as a result - obtain an unpaid provision of these services by the agent. This is contrary to Article 758 § 1 of the Civil Code, according to which the necessary structural element of an agency agreement is the payment of commission. Although the parties to the agency agreement are left free to shape its model, it does not go so far that services provided by the agent can be free of charge.
The analysed agreement term is also contrary to Article 751(4) of the Civil Code (equivalent to Article 11 of the Directive), depriving the agent of the minimum protection that this provision provides. Article 761(4) of the Civil Code, which is a regulation of a semi-imperative character, clearly states when the agent cannot demand commission and the commission paid is subject to reimbursement. This can only be the case if it is clear that the contract with the client will not be performed as a result of circumstances for which the principal is not liable. Provisions less favourable to the agent are invalid. Contrary to this regulation, the parties broadened the list of circumstances depriving the agent of the right to remuneration by establishing that the commission is to be reimbursed if the client is late with the payment of one of the first three lease instalments, and therefore made the reimbursement of the commission dependent on the client's improper performance of the contract, which was unacceptable.
Such a construction depriving the agent of the right to commission, as it is contrary to Article 761(7) § 1 of the Civil Code, Article 761(4) of the Civil Code and to Article 758 § 1 of the Civil Code, does not fall within the principle of freedom of contract. The use by the parties to an agency agreement of contractual structures, the purpose of which is to circumvent the provisions of the Civil Code on agency agreement, which are not dispositive, triggers the sanction of nullity (Article 58 § 1 and 3 of the Civil Code).
Olga Sztejnert-Roszak, IDI agency & distribution expert for Poland