The Court examined the communications sent by the parties to interrupt this limitation of action and the relevant dates in which they were sent and received.
The parties ORANGE ESPAGNE (Principal) and MASNOU COMUNICACIONS (Agent), signed an agreement in October 2008 whose termination was foreseen for October 29, 2010. Some days before this date (October 19, 2010), Orange sent a burofax (this is an official notification attesting its contents and the date in which it is sent and received) to terminate the agreement because of the non-attainment by the agent of the minimum sales during the previous year.
The Agent decided, then, to sue the principal in October 14, 2014 claiming for his goodwill compensation that according to the Principal was not due because of the breaching of the contractual obligations.
The discussion before the First Court Instance and then before the Provincial Court of Barcelona (appeal), was referred to the limitation of action. The Agency Act sets that the limitation of action is one year after the termination of the agreement although case law considers that this period can be interrupted (and starting again) by sending extra-judicial claims (using, for example, a burofax) provided that no more than one year elapses between each interruption. In this case, both courts analysed, then, the validity of the communications between the parties to interrupt such limitation period.
A first communication interrupting the limitation period was sent by the Agent on October 18, 2011 (one day before the expiration of the first year after the termination notice) claiming for the clientele and damages compensations. After some further communications (a new one interrupting the delay in October 10, 2012), a new burofax was sent by the Agent dated in October 3, 2013 and sent in October 8 and answered by the Principal in October 31. Then a new communication by the Agent in October 6, 2014 and sent in October 7 was received the same day by the Principal. Then the judicial claim was presented in October 14, 2014.
The Principal claimed that the action was not possible because between the communication of October 3, 2013 and the one in October 6, 2014 had elapsed more than one year. On the other side, the Agent considered that the action was still possible because it was also necessary to take into account the answer sent by the Principal (October 31, 2013) to interrupt this one-year period.
The Provincial Court decided that the action was still possible but for different reasons. According to its decision, the relevant dates are not those written on the communications (which could be easily manipulated), but the date in which the Agent has effectively claimed and there is clear evidence of it and in that case, this was the date in which he deposits the claim (burofax) in the Post Office to be sent: October 8, 2013 the first one, and October 7, 2014 the second one. Less than one year between both of them.
Ignacio Alonso, IDI agency & distribution country expert for Spain