What is the difference between an agency contract and a business intermediary?
What is the main difference between the agent and the business intermediary?
To answer this question, one must first define the two professional figures.
La definition of agentor rather, of agency contract is given by the Civil Code, which provides in Art. 1742 of the Civil Code that
"By the agency contract one party permanently assumes the task of promoting, on behalf of the other, for remuneration the conclusion of contracts in a specified area." (the commercial agent in Germany)
The figure of the agent is not expressly regulated by the Civil Code and thus belongs to the category of atypical contracts, i.e. contracts not expressly regulated by civil law, but created ad hoc by the parties. However, a definition has been given by case law that has qualified the procurer as the one who:
- "collects customers' orders by forwarding them to the company from which it has been commissioned to procure such commissions, without any stability and on an entirely occasional basis." (Cass. Civ. 1999 no. 1078);
- "carries out intermediary activities for the purpose of facilitating the conclusion of business, when the activity is carried out on an occasional and occasional basis". (Cass. Civ. 1999 no. 1078).
From these definitions, it follows that the business intermediary differs from the commercial agent essentially with regard to the stability of tenure. Whereas the agent undertakes to promote (precisely) the conclusion of business deals on a permanent basis, the intermediary does not assume any obligation of continuous collaboration and may therefore freely decide whether or not to promote a deal (see also Main differences between the agency contract and the commercial distribution contract)
As to the requirement of occasionality(i.e., the frequency of business that is conveyed), the question arises in doctrine and case law as to how this parameter should really be interpreted as a criterion distinguishing mere procuring activity from agency. In an important ruling in 1999, the Court expressed itself as follows:
"Regarding the character of the continuityit should be noted that it not to be confused with the concept of stability. Stability, in fact, means that the performance is repeated periodically over time, not only de facto, as in continuous performance, but also in compliance with a contractual commitment (Art. 1742(1) of the Civil Code).
The difference is very clear in the case of the agent and the business intermediary. The former's performance is stable in that he is obliged to carry out an activity of promoting contracts; the service of the latter, on the other hand, is occasional in the sense that it does not correspond to a legal necessity, but depends exclusively on the initiative of the procurer. " (Cass. Civ. 1998 No. 7799).
According to this orientation, therefore, in order to distinguish the two figures, one must focus essentially on the obligations assumed by the intermediary: if the latter undertakes to promote business in stable and continuous manner, these will have to be qualified as agentwhereas, in the case does not undertake in any way to promote the principal's business, the principal will qualify as a business intermediary. The volume and quantity of orders that the two figures actually manage to promote have no relevance: paradoxically, the business intermediary may promote and realise a significantly higher number of orders than an agent, but the latter will still qualify as an agent if, contractually, he has not committed himself in any way to promoting the intermediary's activity. The performance of the intermediary is therefore occasional in the sense that it depends solely on his initiative.
Lastly, the question arises as to which of the provisions laid down for the agency contract may be considered applicable by analogy to the business agent contract.
In a judgement of 23.11.2007, the Court of Rome recently ruled that the two figures were applicable on the basis of their intrinsic distinction,
"only those provisions inherent to the agency contract, such as commissionswhich do not presuppose a stable and predetermined character of the relationship and not also those - of law and contract - which do presuppose it."
Basically, only certain agency rules apply to the agent by analogy, but it must be ruled out that those that grant special protection to the agent, such as Article 1750 of the Civil Code, concerning notice periods, and Article 1751 of the Civil Code concerning indemnity for termination of the contract, are applicable to it.
Advance notice by the agent and continuation of the contractual relationship
In its judgment No. 668 of 25 May 2012, the Court of Cassation reaffirmed the principle of ultratractivity of the contractual relationship. According to that principle, an agency contract of indefinite duration does not terminate when one of the contracting parties terminates the contract, but only when the notice periodestablished in the interest and for the protection of the non-terminating party.
In the present case, the principal communicated his intention to terminate the contract; in the course of the notice periodthe agent also communicated its intention to terminate the contract.
According to the Court, this very declaration by the agent was to be regarded as an implicit waiver of the notice period, with the result that the agent could not request theindemnity in lieu of notice.
In the present case, therefore, given that "the termination of the relationship remains attributable to the will of the principal, the latter remains obliged to pay the termination indemnity pursuant to Article 1751 of the Civil Code."The agent, in fact, is entitled to the indemnity under Art. 1751 of the Civil Code even when he withdraws from the contract for circumstances that, although not constituting a just cause, are attributable to the principal.
Next stop: paradise (1991)
Directed by Albert Brooks
The agency contract in Germany.
The purpose of this article is to give the reader some elements for a better understanding of the regulation of the agency contract in Germany, the importance of which is very significant, taking into account the fact that the European directive on the subject of agency was inspired by this model and, consequently, Italian legislation, too, was adapted to it, with the regulatory interventions of 1991 and 1999 the figure
1) Agency contract and self-employed person.
In German law, the legal figure of the commercial agent is governed by Book 1, Title 7 of the German Commercial Code (HGB- Handelsgesetzbuch) and more precisely by §§ 84-92c. Section 84 HGB opens this title with a definition that qualifies the commercial agent as one who is entrusted by a principal with the task of interceding, in the capacity of an autonomous trader, in business transactions in favour of the latter or of concluding them on its behalf. An agent is one who performs his activity in substantial autonomy and can regulate his own working hours.
This legislative assumption is obviously used in the courts to distinguish the commercial agent from the employee. Case law considers the definition in § 84 Para. I HGB as a general parameter for being able to distinguish the two legal figures, although the circumstances of the case must be taken into account in their entirety and totality.
Given the generic and not easily interpretable character of the concept of autonomy required by § 84 HGB for commercial agents, case law has repeatedly come across this problem. In a well-known ruling of the Federal Labour Court (BAG) in 2003, several contractual agreements were defined as "Arbeitnehmerverdächtig", i.e. which give rise to the suspicion of an employment relationship. Some of them are listed below:
- request for the transmission of a quarterly forecast on the development of production, covering the individual production departments and a forecast of the percentage assessment of the closing of business of individual customers. Such a request goes beyond the duty to protect the interests set forth in § 86 Para. 1 HGB, which obliges the agent to endeavour to sell products or to complete business, taking into account the interests of the principal;
- orders to block holidays. This limits the agent's autonomy to determine working hours;
- the name of the contract is irrelevant for the classification of the legal figure; the absence of an agreement on the beginning and end of the working hours and on the indication of the organisation of the work will be interpreted in favour of the commercial agent's autonomy:
On the contrary, it does not preclude autonomy:
- the obligation to attend weekly 5-hour conference calls and, in extraordinary cases, to carry out collection orders within a short time,
the imposition of deadlines for the completion of work, as well as, during the company's settling-in period, the blocking of holidays for a period of 4 to 8 weeks; - the communication of production targets, if there remains a considerable margin for self-organisation of working hours:
an obligation to provide information, unless the agent is obliged to provide copious information on its activities and at short intervals; - a quarterly forecast on the development of production certainly exceeds the usual duty to inform, but in itself cannot be regarded as a substantive indication of subordination;
the agent's prohibition of competition; - instructions on working hours, as the employees of the external service also have to adapt to the time requirements of their customers.
According to the OLG (Oberlandesgericht - Court of Appeal) in Koblenz, the type of relationship is explicitly inferred from the personal dependence between the two legal figures and that an economic dependence is neither necessary nor sufficient.
The fact that the agent is linked to the principal through indications and directives that the latter has the power to issue, in general does not affect what is the status of the agent as an independent worker. The employee is one who, unlike the agent, performs his services within an organisation defined by a third party. Relevant for the qualification of the legal figure are the circumstances under which the service is performed and the manner of payment, or purely formal connotations such as the payment of taxes to the social security and health care institutions or the keeping of the agent's personal files.
2) The right to commission.
The agent has according to the § 87 para. 1 HGB right to commission. The agent may exercise this right on all business the conclusion of which has been made possible through an activity attributable to him, or on business concluded with third parties acquired by the agent as clients for business of the same type (§ 87 para. HGB). Therefore, in order to claim the right to commission, it is sufficient to any cooperation of the agent that made it possible for the deal to be concluded.
The parties may, however, agree on an exception clause. Importantly, the second paragraph of Section 87 HGB provides that "the right to the provision ceases when it is certain that the third party does not perform, the sums already received must be returned" ( 87a para. 2 HGB) (so-called star of belief).
It is important to specify that if the principal does not perform the deal completely or partially correctly or in the manner in which it was stipulated, the agent is nevertheless entitled to commission (87-a para. 3 HGB). However, the entitlement to commission shall lapse if the non-performance is attributable to conditions that are not the responsibility of the principal.
La German Supreme Court (BGH - Bundesgerichtshoff) recently ruled on §87a para. 2 HGB specifying that this does not apply if the third party has failed to perform due to a failure to perform on the part of the principal or due to causes attributable to the principal. The Court further specifies that the principal is liable for all situations that led to the non-performance, not only when they are attributable to its personal fault, but also when they are attributable to an entrepreneurial or business risk.
Although it is in the principal's interest to receive the highest number of offers from the agent, the principal's right to decide whether to accept the proposed deal remains unaffected. This decision-making power in the hands of the principal results indirectly from the 86a para. 2 HGBwhich obliges the latter to inform the agent of its intention to accept substantially less business from the agent. This decision-making power is, however, not unlimited: the principal may not refuse completely arbitrarily the conclusion of a procured contract. It must also be emphasised that jurisprudence considers it to be outside the powers of the judge to interfere in the policy of the company, evaluating the decisions taken by the latter. Therefore, the judge must accept any decision that may appear at least plausible.
3. The Area Agent.
Flanking the figure of the agent is that of the area agent (Bezirkshandelsvertreter). This figure is characterised by the fact that he/she has to deal exclusively with an area, entrusted to him/her by the principal or, in other cases, with a specific clientele.
The § 87 para. 2 HGB provides that the area agent is also entitled to commission for business that has been concluded, within the area assigned to him, albeit without his cooperation. Precisely for this reason, it is evident that the appointment of an area agent may have to be rather concealed. It is assumed that the agent may be considered a zone agent if it has been sufficiently clearly qualified as such. In the event of a dispute, the burden of proof falls on the party claiming that the agent is so qualified. Any contractual uncertainties must be clarified by the contracting party.
As for the obligations of the agentThe latter, in carrying out his activity, must look after his area continuously and with particular care, and only by acting in accordance with these criteria will he be entitled to the commission.
A rather recent BGH ruling stated that a business outside the area cannot be considered to be prevented a priori. In fact, if the principal accepts the business, this can be regarded as a tacit enlargement of the area or customer base.
As a rule, an area agent who, with the consent of the principal, carries out activities outside the principal's area or with customers other than those granted, is also entitled to the commission referred to in § 87 para. 1 HGB. However, the parties are free to agree otherwise.
4. Direct sales without producer intervention.
The direct sale to a customer by the manufacturer, despite the fact that the manufacturer has granted a exclusive right to the reseller, is to be considered a breach of contract. But even in the case where exclusivity has not been granted, the manufacturer may not perform at its sole discretion, direct sales to customers in the area the dealer's responsibility.
According to the German Federal Court of Justice, the manufacturer must take due account of and may not, without good reason, oppose the legitimate interests of the retailer who subjects his business and operations to the requirements of the manufacturer.
In a Judgment of the Düsseldorf Court of Appeal of 21.06.2013 (G.R. No. 16 U 172/12) the judges instead denied the existence of a violation of theobligation of loyalty because the manufacturer had not arbitrarily disregarded the legitimate interests of the retailer. In this case, the customers had in fact reiterated that they wanted direct sales from the manufacturer, otherwise they would not have purchased the products.
Considering that the reseller had only a de facto exclusive right, which had not been contractually agreed upon, this decision of the customers constituted, according to the courts, a sufficient reason for the admissibility of direct selling to these customers, especially since the manufacturer had previously offered the reseller a commission payment as compensation.
5. Declaration of bankruptcy and entitlement to commission.
According to the § 115 para. I in correlation with the 116 paragraph I InsO (lnsolvenzordnung - 'bankruptcy law') the opening of bankruptcy proceedings leads to the termination of the agency contractwithout the need to give notice. A continuation of the contractual activities is only possible following an agreement, even tacit, between the agent and the insolvency administrator.
As for the claims to commission accrued following the conclusion of the new contract, these must always be considered as predeductible claims (debts of the estate) § 55 para. I, point InsO. Where the activities carried out by the agent prior to the opening of bankruptcy proceedings have not yet led to the conclusion of a contract with the third party, the entitlement to commission depends on the choice of curator to conclude the deal with the third party or not.
If positivethe right to commission is considered in the light of the 55 paragraph I point InsO as a preferential claim.
Otherwise The right to commission exists in any event irrespective of whether the liquidator has opted to conclude the contract with the third party or has refused it. In such a case, the commission shall be considered an unsecured claim ex § 38 InsO.
A different matter, however, with regard to the agent's entitlement to the non-competition indemnity under the § 90a para. 1 HGBIn this case, the right ceases in the event of termination of the contract following the opening of bankruptcy. At the same time, this event also terminates the agent's non-competition clause that the parties had agreed upon.
Finally, if at the opening of the bankruptcy the contract was already terminated the insolvency administrator may request ex § 103 InsO the maintenance of the non-competition clause and the right to compensation constitutes a claim on the bankruptcy estate.
Supreme Court: abuse of rights also in tax matters.
[:it]For the Court of Cassation, abuse of rights is also possible in tax matters.
The recent judgments 3242/2013 and 4901/2013 reconfirmed that theinstitution of abuse of rights is also applicable in tax matters.
In order to fully understand the dictate, it is first necessary to understand the concept of abuse of rights, being careful to apply a clear distinction between tax evasion and abuse and avoidance.
Unlike other European countries, such as, for example, Germany, Greece, Switzerland and Portugal, Italy has not transposed the principle of abuse of rights as a rule of law. However, at civil law level, doctrine and jurisprudence have developed this widely. An excellent definition was given by the Supreme Court, which provided that "abuse of rights occurs when the holder of a subjective right, even in the absence of formal prohibitions, exercises it in a manner that is unnecessary and disrespectful of the duty of fairness and good faith, causing a disproportionate and unjustified sacrifice of the other contracting party, and in order to achieve results that are different and additional to those for which those powers or faculties were granted"(Cass. Civ. 2009/20106).
In the tax field, the figure of abuse was introduced, Indeed, in its judgment No. 10981 of 13 May 2009, the Court of Cassation, Civil Tax Section, stated that "the prohibition of abuse of rights translates into a general anti-avoidance principle, which precludes the taxpayer from obtaining tax advantages obtained through the distorted use, even if not in conflict with any specific provision, of legal instruments capable of obtaining a tax benefit or saving, in the absence of economically appreciable reasons justifying the transaction, other than the mere expectation of those benefits."
In essence, the concept of abuse of tax law has been a de facto broadening of the concept of avoidance,limited (erroneously) to case studies (Article 37-bis of Presidential Decree 600/1973).
The recent judgments under review, have reaffirmed the applicability of the institution of abuse also in the tax field. Specifically, they ruled that when a taxpayer, exercising a right expressly recognised to him, does not in reality pursue an end worthy of protection by the system, but, on the contrary, achieves an objective that is contrary to it, no judicial protection can be granted to him. In fact, the person abuses the freedom to adopt a certain treatment for his own benefit by exploiting the variety of legal forms that the legal system makes available to him.
Therefore, as opposed to evasion, which occurs when there is a concealment of taxable wealth i.e. the alteration of an economic fact (such as simulation, fictitious interposition), abuse and avoidance, on the contrary, occur when the taxpayer's tax advantage is undue, since it is obtained by exceeding (or abusing) the advantage expressly recognised by a rule, by pursuing an advantage disapproved by the system.
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Supreme Court: bank not obliged to give notice of protest
[:it]According to a rather recent Supreme Court ruling, 12.2.2013 n. 3286, the bank is not obliged to warn the customer prior to the protest of a cheque issued for lack of funds.In the case under analysis, the Supreme Court rejected the ruling of the appeal instance, brought by a bank, wrongly ordered to pay damages to the account holder.
In this case, the Court of Appeal held that a legitimate interest, on the part of the account holder, cannot be detected in the legitimate expectation to be informed of the sending of a cheque for the raising of the protest. Specifically, they pointed out that such an expectation is not protected by our legal system, since its object is a mere factual interest, not at all comparable to a legitimate interest. The Court, on this point, contested the Court of Appeal's reference to the decision of the United Sections No. 500, of 22.7.1999.
It is recalled, briefly, that this last judgment stated that damage may be compensated pursuant to Article 2043 of the Civil Code.only if it concerns "an interest of relevance to the legal system; be it an interest undifferentiatedly protected in the form of a subjective right (absolute or relative) or in the form of a legitimate interest or other interest that is legally relevant and therefore not attributable to mere factual interest."In conclusion, the judgement points out that the damaging event resulting from a protest cannot be attributable to the conduct of the bank, but only to the account holder. The latter, in fact, is always aware of the state of his current account, and for this reason, any protest for lack of funds will be attributable solely to him, since he has no right to prior notice from the bank.
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Software protection. Patentability or copyright?
[:en]How is software protected? Is it patentable? What is copy-right protection?
These questions were answered by the Court of Justice in a landmark judgment of 2.5.2012 (Case C-406/10)with which it interpreted Directive 91/250/EEC.
Specifically, the Court stated that:
- the programming language and file format of data used within this programme are not protected by copyright on programmes;
- he who licences a copy of software may, without the authorisation of the copyright holder, observe, study or experiment with the operation of said programme.
Underlying this decision is a policy adopted by Italy and Europe several years ago, which have chosen the path of the software protection through copyrightonly software that produces a technical effect should be considered patentable.
To briefly understand the difference between the two approaches, suffice it to say:
- copyright is automatically granted to the author under Article 2575 of the Civil Code;
- the granting of a patent (Art. 2585 of the Civil Code), on the other hand, must be explicitly requested from a patent office, carrying out a prior search to verify the originality of one's creation.
European and Italian legislators have opted for copyright protection of software, at the in order to balance the conflicting interests at stakeon the one hand the technological progress and, on the other hand, the software producers.
In this way, the author was granted the possibility of economic exploitation of the intellectual creation and, at the same time, everyone is allowed to enjoy the progress achieved (post the non-patentability of the product) avoiding the creation of stable positions of cultural and technological monopoly.
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The use of CEM in the context of third-party enforcement
[:en]As from 1 January, it is mandatory for the enforcement creditor to indicate the certified mail address in the attachment deed.
Starting from 1 January 2013apply to foreclosures against third parties The amendments to the Code of Civil Procedure introduced by Article 1, Paragraph 20 of Law No. 228 of 24 December 2012 in Official Gazette No. 302 of 29 December 2012.
Specifically, the reform provides that the claimant creditor must indicate the certified mail address(a.k.a. PEC), in the attachment deed (Art. 543 of the Code of Civil Procedure) and, moreover, the indication that the third-party creditor may also make the declaration pursuant to Art. 547 of the Code of Civil Procedure by means of PEC.
It should be recalled, briefly, that already with the amendments adopted by Law 52/2006, the third party was allowed, in cases of non-employment claims, to make the declaration also by registered mail. With the reform, therefore, the third party may decide to make said declaration by certified mail, thus avoiding costs and complications.
It is perhaps worth emphasising that the garnishee third partycalled upon to declare, if in possession of things of the enforceable debtor or if it is owed money by the latter, it does not assume the capacity of a party in the enforcement proceedings, whereas, in the event of a failed, negative or contested declaration, it becomes a defendant in any action to be brought to ascertain its obligation towards the debtor. The legislature also amended arts. 548 and 549 of the Code of Civil Procedure. It is stated in the new text of Art. 548 of the Code of Civil Procedure that, in the case of work credits (545 para. 3 and 4 CCP), the third party's failure to make a statement or to appear at the hearing set by the creditor is equivalent to non-contestation of the claim. Indeed, for claims other than labour claims, the new paragraph 2 of Section 548 of the Code of Civil Procedure provides that if the aggrieved party declares that it has not received any statement from the third party and, in addition, the third party does not appear at the hearing set by the aggrieved party, the court shall fix a new hearing by order, to be notified to the third party; if the third party does not appear at this second hearing either, the claim is considered uncontested. Finally, the new Section 549 of the Code of Civil Procedure provides that if objections to the third party's statement arise, they are resolved by the court by order based on appropriate findings. The order is, in the event, contestable pursuant to Art. 617 Code of Civil Procedure.
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[:it]The denied transport of disabled persons. The Marche Regional Administrative Court recognises the moral damage[:]
[:it]The Marche Regional Administrative Court recognised the moral damage to the family of a disabled girl who had been denied the school transport service.
On 11.1.2013, the TAR Marche, with the Judgment No. 32/2013on the subject of existential damage, clarifying certain aspects relating to the configurability and quantification of damage in the case of denied transport of disabled personby the P.A.
The present case, indeed, saw a handicapped girl, which was deniedfor a certain period of time, the school transport service by the Municipality of Cartoceto.
The Regional Administrative Court (TAR) upheld the family's appeal against the municipality, which had not only failed to act on the parents' requests, but had only maintained an unjustified silence.
Specifically, the TAR notes that the damage suffered by the family was, in fact, derived from the unjustified delay with which the municipality took action in order to guarantee the operation of the service to the disabled person. The compensation due under Article 2-bis of Law No 241/1990 took the form of 'apparatus fault' dhe municipality.
Regarding, on the other hand, the existence of a nexus of causality between the inefficiency and the damage to family membersthe Judge recognised a prejudice of a moral and psychological nature, caused to the parent of a disabled child, who is denied a legally required care service solely for bureaucratic reasons, the family itself having to make up for the inefficiency.
Lastly, the Regional Administrative Court rejected the plaintiff's claims for compensation for existential damage, given the brevity and transience of the damage caused and the absence of any evidence of a deterioration in school performance due to repeated absences.
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Evading entrepreneur acquitted by court: the P.A. had not paid him.
[:it]For the Milanese Gip if the PA does not pay its debts to suppliers, it cannot claim that they are convicted of evasion.
Can an entrepreneur who evades taxes be considered guilty if the state does not pay his debts? This question was answered by a recent ruling of the Court of Milanwhich found itself deciding on a case of strong socio-economic interest. Specifically, the managing director of a Milanese company, Sintea Plustek of Assago, had been supplying three ASLs and a hospital in Campania since 2005 with products for a total amount of EUR 1.7 million. However, these supplies were not paid by the PA. Despite the default from the PA, the company still owed the tax authorities approximately EUR 180,000 in VAT for invoices issued. For this reason, criminal proceedings were initiated against the company's legal representative for tax evasion.
The Milan Judge, Claudio Castelli, decided the acquittal of the defendant since these, as stated in the grounds of the judgment, 'was forced not to pay by an omissive and dilatory behaviour on the part of public bodies that should have paid. "
This judgment is of particular interest since the Court wanted to protect not so much the right of the individual entrepreneur, but of a (now large) category of Italian companies often reduced to collapse due to state failures. It is recalled, most recently, a similar case involving the legal representative of the recovery community for drug addicts 'Saman'. In the case in question, the community boasted, in 2009, receivables from the Asl of two and a half million euro, and debts to the tax authorities of one million 750 thousand euro. The Gip had at the time acquitted the defendant on the grounds that the non-payment to the Treasury was to be considered a 'case of force majeure', as no malicious intent on the part of the administrator could be found.
Lastly, it is important to emphasise that the acquittals in the two criminal trials do not disregard the companies' obligation to pay the taxes due, the amount of which had been quantified in the parallel tax proceedings.
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[:en]CJEU: cancelled flight? Obligation to assist passengers.
[:en]The Court of Justicewith the judgment of 31 January 2013 in Case C-12/11, expresses itself once again on the issue of compensation for damage caused by delays and inconveniences to airline flights.
It is recalled, briefly, that with the Judgment of 23 October 2012, No. 629/10the Court held that, in the case of a passenger disembarking with a delay of three hours after the scheduled timethe parameters of damages dictated by EC Regulation No. 261/2004 apply. flat-rate compensation of between 250 and 600 eurosin the event of flight cancellation.
The judgment of 23 October also specified that compensation cannot be claimed if the air carrier proves that the delay was caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken, i.e. circumstances beyond the air carrier's actual control.
In the judgment under review, the Court of Justice specifies on this point that, even in the event of force majeure, companies are not exempt from theobligation to provide assistance to stranded passengers. Therefore, even if the flight is cancelled due to exceptional circumstances such as the closure of the airspace - in this case the eruption of the Icelandic volcano Eyjafjallajökull - the carrier is still obliged to assist passengers without any time or money limitations by providing them with accommodation, meals and refreshments.
Moreover, the Court emphasises that, when the air carrier has not fulfilled its obligation to provide assistance to the passenger, the latter may obtain, only the reimbursement of such sums as are necessary, appropriate and reasonable.
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