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.
