close
SPAIN

SPAIN: Two judgements on goodwill compensation in agency agreements.

Termination by the agent and the expiration term to claim.

Ignacio ALONSO - 16.10.17
Country expert - IDARB Arbitrator

Agency agreements: Termination by the Agent due to unilateral modifications by the principal does not prevent from receiving clientele compensation.

The Provincial Court of Zaragoza has ruled a judgement in June 13, 2017 (414/2017 rec. 165/2017) regarding the termination of the agency agreement by an agent who received unilateral modifications by the Principal

In October 2013 an agent and the Banco de Santander (Principal) signed an agency contract in which the remuneration and exclusivity were established (the exclusivity was extended to two years after the termination of the term during which it was prohibited to carry out such activity and acting as the collaborating agent).

By email of September 2015, the Bank notified the agent the new economic conditions of the contract. These conditions were not accepted by the agent who proceeded to terminate the contract.

The Court has ruled that, although it was true that it was the agent who decided to terminate the contract, it was not an unjustified decision but was due to the imposition of new contractual circumstances by the Bank and involving the alteration of its elements, substantial changes in the concept of agricultural insurance, in relation to new customers, a change in the typology of customers and commissions for maintenance and increase of customers.

The decision by the agent to terminate, therefore, does not preclude the recognition of clientele compensation in favour of the agent.

 

Agency agreements: The expiration term of one year for clientele compensation claim is applicable to independent agency agreements even if other agreements between the same parties exist.

The Provincial Court of Pontevedra (judgement of May 22 2017; rec 213/2016) analysed several contracts between Dismaca, SA (agent) and Repsol Butano, SA (principal). Although the agent alleged that it was a mixed contract and not an agency one, the Tribunal concluded that there was an agency contract independent of others that might exist between the parties.

The discussion was due to the expiration of the one-year limitation period to claim compensation for clients established by the Agency Law. The Agent waived this period and asked the application of the general one set in Article 1964 of the Civil Code due to the alleged mixed and atypical nature of the contract.

The Court rejected this claim because of its contradiction with the approach of the claim that spoke of agency contract, and by the exercise of the action of goodwill (clientele) compensation based on the regime of the Agency Law.

The independence of the contracts is, in the Court's view, contradictory with a hypothetical single mixed contract. Nor does it accept the qualification as an atypical contract, given the express reference to a special Law that regulates the agency contract. The Court insists that it was the agent who claimed based on an agency contract, only with subsequent rectifications to avoid the application of the expiration term.

 

Ignacio Alonso, IDI agency and distribution country expert for Spain

 

RELATED