The principal's bankruptcy. For what amounts can the agent be filed as a debtor?
Article 2751-encore c. c., confers in favour of the agent a general lien on movable property that is placed in accordance with Article 2777 of the Civil Code immediately after legal costs and employees' claims. That article reads as follows:
"Claims relating to: [...] the following have a general lien on furniture commissions arising from the agency relationship due for thelast year of performance and the allowance due for termination same."
This rule constitutes one of several indications of the legislative tendency to assimilate the agent to the employee; by virtue of this provision, the agent may claim a general lien on the debtor's assets both for commissions accrued in the last year of performance and for indemnities due as a consequence of the termination of the relationship itself.
It should be noted that in 2013 the United Sections[1] have definitively established that the principle that the general privilege provided for by the provision under comment does not assist claims for commissions due to the corporation exercising the activity of an agent.
As for the annual deadline provided for in Art. 2751-encore c.c. it is referable to commissions and not to other indemnity items; moreover, according to doctrine[2] and case law[3]this last year does not start from the date of declaration of insolvency, but since the termination of the relationship, since in the explicit letter of the rule, reference is made to the "last year of service" and not to the last year in respect of the bankruptcy. It should be pointed out that, according to the majority case law, if the agency relationship was still in existence at the date of bankruptcy, this annual period should be considered to coincide with the date of the declaration of bankruptcy itself.[4]
It is very important to point out that Article 1748 of the Civil Code provides that:
"The agent shall be entitled to commission on business concluded after the date of termination of the contract if the proposal is received by the principal or the agent at an earlier date or the business is concluded within a reasonable time after the date of termination of the contract and the conclusion is predominantly attributable to the agent's activity."
In the light of this normative dictate, therefore, the privilege includes business promoted by the agent before the termination of the relationship and concluded both before and after the termination[5] even if they have not yet been performed by the principal.[6]
On the contrary, the recognition that Article 2751-bis(3) makes of the privilege relating to the indemnities due for the termination of the relationship is independent of any reference or temporal limitation.[7] The same cannot be said for thesupplementary customer allowancewhich is of a contractual and not a regulatory nature (governed precisely by the ERM) and therefore non-returnable in the exhaustive list provided for in the rule under analysis.
On the basis of the foregoing, in the event the contractual relationship is terminated for reasons not attributable to the agent and, following the termination of the relationship, the principal enters into bankruptcy, the agent will have the right to file a claim for the commissions relating to the last year of business and severance indemnities pursuant to Article 1751 of the Civil Code and, in the event of termination ad nutumcompensation for lack of notice.
A much-discussed issue concerns the effects of bankruptcy on an ongoing agency relationship at the time of the declaration of insolvency itself. In fact, in the silence of the law, the question arises as to whether, in the event of the principal's bankruptcy, the agency contract should be governed by the general rules set forth in Article 72 of the L.F. and therefore its performance should be suspended until the liquidator, authorised by the committee of creditors, declares to take over or dissolve the relationship, or should the rule dedicated to the mandate (Article 78 L.F.) apply, with the consequence that if the principal goes bankrupt, the contract itself is automatically dissolved.
This issue has great practical relevance, in fact, should Article 72 of the Bankruptcy Law be deemed applicable, the contractual relationship is not dissolved following the mere declaration of bankruptcy, but rather remains suspended in a sort of quiescent phase, until such time as the liquidator opts for the continuation or termination of the relevant contractual relationship, with the consequent right, in the latter case, of the agent to severance indemnities. Otherwise, i.e. application of theArticle 78 F.L., the dissolution operates as of right, with the consequent exclusion of the agent's right to payment of indemnities due for the termination of the relationship.
The majority case law on this point holds that:
"with reference to the agency contract, by virtue of the peculiar fiduciary nature of the relationship of principal, in the event of bankruptcy, the new general rule contained in Article 72 of the Bankruptcy Law is not applicable, and indeed the contract is terminated ope legis, with the exclusion of the agent's right to payment of the indemnity for termination of the relationship and lack of notice precisely as a consequence of the operation of the termination of the contract for a cause independent of the will of the parties."[8]
On the contrary, if the general rules of Article 72 of the Bankruptcy Law are deemed applicable and the liquidator opts for the continuation of the relationship, the agent's claims accrued as a result of the performance of its activity during the bankruptcy are lodged in prededuction for the activity performed after the declaration of insolvency pursuant to Article 111(1)(1) of the Bankruptcy Law.[9]
Finally, it should be noted that, with regard to contributions paid to the institute ENASARCO since they are neither compensatory nor commissionable in nature, they are not covered by the privilege under Article 2751 encore Civil Code, nor can they fall under the provision of Article 2753 of the Civil Code, which is exclusive to subordinate employment.[10]
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[1] Cass. Civ. Sec. Un. 2013 no. 27986.
[2] Venice - Baldi, The Agency Contract, p. 299, 2015, Milan.
[3] Trib. Perugia 30.12.1991; Trib. Rome 19.9.2007.
[4] Trib. Prato 18 January 2012, in Bankruptcy 2012, p. 583, with a brief note by COMMISSO, Dissolution ex lege of the agency contract in the event of the principal's bankruptcy.
[5] Venice - Baldi, The Agency Contract, p. 300, 2015, Milan.
[6] Cass. Civ. 2011, no. 9539.
[7] Trib. Rome 19 September 2007.
[8] Trib. Prato 18 January 2012, in Bankruptcy 2012, p. 583, with a brief note by COMMISSO, Dissolution ex lege of the agency contract in the event of the principal's bankruptcy
[9] Practical Memento, Business crisis and bankruptcy, p. 435, no. 3100, 2016, Ipsoa.
[10] Venice - Baldi, The Agency Contract, p. 299, 2015, Milan
