Commission is normally the agent's main means of remuneration, consisting of a percentage related to the value of the business promoted by the agent. The Civil Code regulates the right to commission in Art. 1748 of the Civil Code. Specifically, para. (1) of that article provides that:
"For all business concluded during the contract, the agent is entitled to the commission when the transaction has been concluded as a result of its intervention. "
Moreover, the fourth paragraph of Article 1748 of the Civil Code reads as follows:
"The agent is obliged to return the commissions collected only if and to the extent that it is certain that the contract between the third party and the principal will not be performed for reasons not attributable to the principal."
The agent is therefore entitled to the commission only if there is the conclusion of a contract between the principal and the third partycommission is not due and, in any event, if it has already been paid to the agent, must be returned to the principal if the third party fails to perform the contractfor causes not attributable to the principal itself.
The above articles set out the prerequisites for the agent's entitlement to commission to arise. This moment, however, must be absolutely distinct from the moment of accrual of the commission itself, i.e. when the agent may claim its payment (see also on this point The 'star of belief' in the agency contract).
This distinction follows from a reading of Art. 1748(4) of the Civil Code:
"Unless otherwise agreed, the commission shall be payable to the agent from the moment and to the extent where the principal has rendered or should have rendered the performance under the contract with the third party. The agent shall be entitled to commission at the latest, without limitation, from the time and to the extent that the third party has rendered or should have rendered the performance if the principal had rendered the performance at its expense.”
A reading of this rule shows that there are two distinct moments on which the actual accrual of the commission depends:
- when the service is performed by the principal (the so-called 'general' criterion);
- at the latest, and without fail, when the service was performed by the third party (the good performance of the business).
With reference to the first pointcommission accrues from when the principal performs its service, or should have performed it by virtue of the contract concluded with the third party (i.e. the customer). This constitutes the so-called "general" regime, which applies whenever the parties have not agreed otherwise.
On this point, it must certainly be emphasised that the rule does not expressly refer only to the moment in which the principal performs his service, but rather to the moment in which he should have executed itaccording to the agreements he had made with the client.
Think of the classic example where the principal undertakes to deliver the goods by a certain date: if the principal does not send the goods by that date, the commission will still be due to the agent, as the failure to perform is attributable to a default on the part of the principal.
An interesting aspect is that the article obliges the principal to pay the commission to the agent, only in the event that the same is actually required to perform the service under the contract. This implies that if the principal's non-performance is due to causes not attributable to it, the agent's right to payment of the commission itself ceases.
Returning to the case analysed above, i.e. the delivery of goods: if the principal has not sent the goods due to force majeure, i.e. because the customer has not paid for the goods sold or the balance of the down payment in the manner agreed upon by the parties, the principal will no longer be liable to pay the commission.
Therefore, the right to the commission accrueda, unless otherwise agreed between the parties, when the principal's failure to perform constitutes a breach vis-à-vis the third party.
The general criterion described above is however derogable by the parties, who may agree otherwise, postponing or bringing forward the time at which the right to commission accrues, anchoring it at a different time than the principal's performance.
This option granted to the contracting parties is ceiling mandatory, which is enshrined in the second sentence of Art. 1748(4) of the Civil Code:
"the commission shall be due to the agent, at the latest, from the time and to the extent that the third party has performed or would have had to perform the service if the principal had performed the service at its expense.“
This means, in essence, that it is possible to postpone the accrual of commissions, as long as it is made payment by the third partyi.e. at the latest upon the successful performance of the business. The latter hypothesis, however, must always be subject to the principal having performed its own performance. In essence, the reference to the time when the third party should have rendered the performance must be interpreted as meaning that the agent may treat the commission as due even in the event of non-payment by the customer, but only where this results from the default of the principal (cf. on this point Venezia-Baldi, Il contratto di agenzia, p. 273, Giuffrè Editore, 2014).
With the following examples, an attempt is made to make the above case clearer:
- the principal correctly delivers the goods to the customer, who, notwithstanding the principal's performance, does not pay the price of the goods within the agreed time limit: in this case, the principal cannot be considered to be obliged to pay the commission, since the non-performance of the third party is not justified by a non-performance of the principal himself
- the principal delivers the wrong goods to the customer, who fails to pay the price within the agreed time limit. In this case, it may reasonably be held that payment of the commission is due, since the third party's non-performance is caused by the principal's own non-performance (on this point cf. Bortolitti, Distribution Contracts, p. 285, 2016, Wolters Kluver).