Concurrently with the closure of an agency relationship, it is customary for the parties to formalize with a document all the existing disputes between them (indemnity, commissions still due, etc.).

Evaluating the validity and effectiveness of this document is far from easy, given that it depends on various circumstances, which are not limited only to an analysis and interpretation of the content of the text, but also from the moment in which this agreement was drawn up (i.e. before or after the termination of the relationship), as well as the legal form covered by the agent (natural person or company).

The art. 6 of the law 11 August 1973, n. 533 has fully amended art. 2113 cc, relating to the invalidity of waivers and transactions, extending (as will be developed below) the application to all the relationships provided for by art. 409 cpc, including agency relationships. The civil law provides in the first paragraph that:

"waivers and transactions, which have as their object the rights of the employee deriving from mandatory provisions of the law and collective contracts or agreements concerning the relationships referred to in Article 409 of the Code of Civil Procedure, are not valid. "

The second paragraph imposed a term of six months for the appeal starting from the date of termination of the relationship, or of the renunciation or transaction if the same occurred at a later time; the appeal can be carried out, on the basis of the third paragraph of art. 2113 of the Italian Civil Code, in a not particularly orthodox way, that is "with any written deed, including out-of-court, of the worker capable of disclosing the will. "

The fourth and last paragraph of art. 2113 of the Italian Civil Code, on the other hand, provides that waivers and transactions are always valid if formalized in a protected location within the terms provided for by art. 410 of the Code of Civil Procedure, that is, before the labor court, or the territorial management of labor.

The rule therefore sets itself as a limit to the faculty of disposing of the rights of the worker and has the purpose of offering the same an instrument, consisting in the faculty of challenging the dispositive acts that may have been determined by a situation of imbalance in the contractual relationship, provided that:

  • the subject of the agreement are real waivers and transactions and not mere receipts;
  • in terms of structure, characteristics and operating methods, the relationship falls within those mentioned in art. 409 cpc;
  • the subject of the transaction are mandatory provisions of the law of collective bargaining.

Below is a brief review of the points listed above.

1. Receipts, Waivers and Settlements.

In the first instance, art. 2113 of the Italian Civil Code applies only to waivers and transactions carried out by the worker, which differ from generic final receipts which do not have any settlement substance and are therefore not real declarations of a willingness to negotiate. The receipts are considered mere attestations underlying to affirm the satisfaction of certain rights and, therefore, do not prevent a subsequent request for judicial protection of further rights not yet satisfied.[1]

For a renunciation or transaction to be conceivable, it is necessary that the worker, in making the declaration, has the exact representation of the rights, determined or determinable, of which he intends to voluntarily deprive himself in favor of the employer or on which he wishes to compromise;[2] if, on the other hand, the object is not delimited and the party is not aware of it, it is neither a renunciation nor a transaction, whatever the reality in which the declaration is made and signed. It is read:

"the final receipt signed by the worker, which contains a declaration of renunciation of higher sums referring, in general terms, to a series of claims that can be assumed in the abstract in relation to the provision of subordinate work and the conclusion of the relative relationship, can assume the renunciation or transaction value, which the worker has the burden of challenging within the term referred to in art. 2113 of the Italian Civil Code, on the condition that it is ascertained, on the basis of the interpretation of the document or due to the concurrence of other specific circumstances inferable aliunde, that it has been issued with the awareness of certain or objectively determinable rights and with the conscious intent to abdicate or to compromise on the same. "[3]

2. Employee, commercial agent and 2113 cc

As anticipated, art. 2113 cc refers to the "employee"Given the express referred to in relations provided for by art. 409 cpc

The art. 409 identifies disputes that must be decided according to the rite of work, also including self-employment relationships of a non-subordinate nature, including those of representation and agency, provided that the work performance is characterized by a continuous and coordinated work performance, mainly personal.

The question arises spontaneously whether only commercial agents acting as natural persons are subject to the rite of work, or also agents who, even if they operate in the form of joint-stock companies, have a structure such that in fact the personal element prevails. of the service (e.g. single-member companies, companies between individual agents, etc.).

According to the most recent jurisprudence of the Supreme Court, only agents who act as natural persons are considered to be subject to the rite of work, excluding all the hypotheses of agent constituted in corporate form, both of persons and capital, regular or irregular whether they are:

"The limited partnership, whatever the number of partners, however, constitutes an independent center for the indictment of legal relationships with respect to the partners themselves; therefore, once an agency contract has been concluded between the principal company and a limited partnership, the dispute over the termination of this contract is beyond the jurisdiction of the labor judge, to nothing, noting that one of the partners has materially carried out personal activity as an agent , as this activity is necessarily mediated by the company, losing the character of the personality towards the principal"[4]

In the case of a renunciation or transaction carried out by an agent who does not carry out his service in a mainly personal way, this will not be subject to the guarantee regulations of art. 2113 of the civil code, which will therefore be reserved solely for agents who carry out the activity as natural persons.

3. Mandatory rules.

The concept of mandatory rule is indirectly linked to the principle of contractual autonomy, sanctioned by art. 1322 of the Italian Civil Code, by virtue of which "the parties can freely determine the content of the contract within the limits imposed by law. " Therefore, those rules whose application is imposed by the legal system regardless of the will of the individual are said to be mandatory.[5]

In the context of labor law, the mandatory rule has the purpose of re-establishing that parity between contractors, typical of private relationships, which the diversity of social and economic situations could prevent in the context of the employment relationship.[6] "The mandatory rule therefore has the function not of a mere formal guarantee of personal freedom, but moves in the sense of making this freedom effective, and starts from the idea that man's existence does not depend only on his self-determination, but also on relationships economic and / or power in which he lives and which lead him to depend on variants on whose production he does not (generally) exercise any influence.[7]

The art. 2113 of the Italian Civil Code operates precisely in this area, with specific regard to the validity of any transactions or waivers made by the worker on rights deriving from mandatory rules. Therefore, understanding what is specifically meant by mandatory rule is essential in order to be able to apply this legal provision also within the commercial agency.

The doctrine almost unanimously agrees in distinguishing a group of rights absolutely unavailable and guaranteed at the constitutional level (defined primary or strictly personal such as, for example, the right to health, weekly rest, holidays, social security, etc. ), whose dispositive acts would be totally void pursuant to art. 1418 cc and would remain outside the scope of application of the law and other rights, of a patrimonial nature (cd secondary), which, on the other hand, despite being set by mandatory rules, are not absolutely indispensable: it is in relation to them that the rule in question would operate with consequent annulment of the disposition act.[8]

The special discipline dictated by art. 2113 cc which makes cancellable renunciation and settlement shops, provided that they are promptly challenged in the six-month term and concerning rights already accrued. Contrary to art. 2113 of the Italian Civil Code does not operate against rights that have not yet arisen or matured, since in this case the negotiation device would be otherwise directed to regulate the effects of the employment relationship in a different way from that established by law and could result in the nullity of the deed. .[9]

3.1. Commissions.

In this context, the majority jurisprudence is oriented towards the belief that any waivers or transactions relating to commissions accrued by the agent should not be considered binding. It is read:

"are valid - and are therefore not subject to the appeal regime pursuant to art. 2113 cc - waivers and transactions concerning the extent of commissions due to the agent, the determination of which is left to the free availability of the parties."[10]

3.2. Indemnity pursuant to art. 1751 cc and AEC indemnity.

A different argument, on the other hand, concerns the agent's right to the severance pay indemnity pursuant to art. 1751 of the Italian Civil Code, given that the resulting text following the changes made in implementation of Directive 86/653 does not seem to leave many doubts in this regard; the penultimate paragraph of this provision reads: "the provisions of this article are mandatory to the disadvantage of the agent ".

Absolute legal certainty and clarity (and its consequent interpretative activity), ceases if we analyze this rule in relation to art. 19 of Dir. CE 653/1986, which establishes the mandatory right to indemnity only in the period preceding the end of the contract:

"The parties may not derogate, before the expiry of the contract, from articles 17 and 18 to the detriment of the commercial agent. "

The problem arises that, by crossing art. 1751 cc penultimate paragraph, with art. 19 of the directive, the provision on indemnity could no longer be considered mandatory following the termination of the relationship, with the implicit consequence that the renunciation or settlement subsequent to the termination of the relationship would not have as its object a mandatory right and thus subject to the discipline of referred to in art. 2113 of the Italian Civil Code, which would remain applicable only to waivers and transactions that took place during the execution of the relationship.

To make things clearer, the Supreme Court, in a partially dating sentence, nevertheless found that the Italian legislator, in transposing the Community law, omitted the incident - before the expiration of the contract - simply stipulating that the provisions referred to in the same article are mandatory to the agent's disadvantage.

According to the Court, this means that although, according to the directive, the settlement agreements reached after the expiry of the contract relating to the extent of severance pay could be considered fully legal, now, in the system outlined by the new provisions of our civil code, the legislator wished to maintain the mandatory nature of art. 1751 cc even after the termination of the contract.[11]

It follows that, depending on whether the provision in question is considered, following the interruption of the contract, as derogable or mandatory, any waiver may be considered as open to challenge or not to be challenged.

However, we must not be distracted from the fact that the subject of an appeal pursuant to art. 2113 cc, what art. 1751 of the Italian Civil Code precludes, that is, the provisions of agreements that are unfavorable for the agent: the jurisprudence has in fact recognized that if such an agreement is possible to modify a contract already concluded, a fortiori a derogation must be considered permitted, "not in peius", With respect to the legal regulations following the conclusion of the contract. [12]

Translating this principle into practice, if only art. 1751 cc, the agent must prove that the settlement / waiver agreement was pejorative for him, demonstrating that the conditions provided for by the code regulations are met (i.e. to have procured new customers for the principal or to have significantly developed business with existing customers, as well as the advantages that the principal receives from it), as well as the unfairness of the agreed payment.

Less clear is the case in which the parties have agreed on the applicability of the AEC trade and have come to an agreement which in fact exactly recognizes the indemnities provided for by this discipline; it must be acknowledged that the prevailing orientation of jurisprudence, even if it attributes to the collective discipline a value of "guaranteed minimum", still recognizes the agent, who proves that the conditions set out in art. 1751 cc, to ask the judge for an integration necessary to bring it to fairness [13]. Following this orientation, even a settlement agreement that took place after the termination of the contract, where the parties recognize the agent the indemnities referred to in the AEC, would be challengeable, to the extent that this indemnity proves to be lower than that due to the agent in force. of civil law provisions.

3.3. Post-contractual non-competition agreement and art. 2113 of the Italian Civil Code

Although no jurisprudential precedents have been found, there is another element that could be the subject of potential disputes, inherent to the relationship between art. 2113 cc and art. 7 AEC Commercio 2009, on the subject of a post-contractual non-competition agreement. The standard provides:

“In implementation of the provisions of article 1751-bis of the Italian Civil Code, the payment of a fee is due
non-commissionable indemnity, mandatorily in a single solution at the end of the relationship,
against the post-contractual non-competition agreement, when it is included in the individual
agency assignment.”

Since this is an expressly mandatory provision deriving from a collective economic agreement, it would seem to fall perfectly within the scope of application of art. 2113 of the Italian Civil Code, with the consequence that an agreement that provides for the payment in installments of the aforementioned indemnity could potentially be subject to appeal by the agent.

Given the sensitivity of the subject, it is therefore advisable to formalize any waivers or transactions relating to severance indemnity, within the terms provided for by art. 410 cpc, ie before the labor court, or, alternatively, the territorial management of labor, given that they become irrefutable by law.

[1] Cassino Court, 1.7.2008, n. 997.

[2] Cass. Civ. 2006, n. 11536, Cass. Civ. 2004, n. 11627, Civ. 2003, n. 9636.

[3] Court of Appeal Catanzaro, 18.4.2017, n. 423

[4] Cass. Civ. 2022, 10184; in this sense too Cass. Civ. 2012, n. 2158. Contra Cass. Civ. 1997, n. 4928 "A parasubordination relationship can be configured, with the consequent jurisdiction of the labor judge, even in the case of activities provided in the context of corporate management, by means of de facto companies or persons, even irregular ones, where it appears that the aforementioned activity it is concretely provided in such a way that that state of socio-economic dependence exists which constitutes the essential element of parasubordination and of which predominantly personal activity is the typical revealing index.

The corporate profile may well be limited to a simple agreement between the shareholders concerning the distribution of work and revenues, with the symptomatic attenuation, therefore, of the element constituted by the joint exercise of an economic activity, provided for by art. 2247 of the Italian Civil Code, as well as the one referred to in art. 2082 of the same code, of the organization for the purpose of producing or exchanging goods or services.”

[5] Torrente - Schlesinger, Manual of private law, Giuffrè Editore.

[6] Cester - www.treccani.it.

[7] By Meo, The mandatory legal norm in Labor Law, Marche Polytechnic University.

[8] One Legal, Commented Civil Code, Wolters Kluwer.

[9] Cass. Civ. 2006, n. 2360, Cass. Civ. 2004, n. 2734.

[7] Torrente - Schlesinger, Manual of private law, Giuffrè Editore.

[8] Cester - www.treccani.it.

[9] By Meo, The mandatory legal norm in Labor Law, Marche Polytechnic University.

[10] Trieste Court, 2.1.2001.

[11] Cass. Civ. 2004, n. 7855; in this sense Venezia, The agency contract, 2020, Giuffé; Saracini-Toffoletto, The agency contract, Giuffré.

[12] Cass. Civ. 2000, n. 11402.

[13] Trieste Court, 2.1.2001, Cass. Civ. 1988, n. 6.