Unilateral changes to the agency contract by the principal.
When dealing with the subject of unilateral contractual modifications, it is necessary to recall the existence of a fundamental principle of law, i.e. the 'consent of the parties' (under arts. 1325 and 1372 of the Civil Code). Based on this principle, the parties' agreement is necessary for the valid modification of pre-existing contractual agreements (on this point see also The power of the principal to change the client portfolio of his agent). The Supreme Court, precisely on this basis of law, considered null and void precisely a clause inserted in an agency contract that allowed the principal to change the commission rates at will. (Cass. Civ. 1997 No. 11003).
That being so, and on the basis of the case law cited above, it may reasonably be held that a clause conferring the power to unilaterally amend contractual terms must tend to be considered null and void, or at least must be interpreted consistently with the principles dictated by the ECA, if applicable to the relationship.
However, it should be borne in mind that jurisprudence, while not directly addressing the issue, tends to take for granted the nullity of the clause in the contract that differs from the AEC and its replacement by the latter's provision, (Cass. Civ. 2000 no. 8133; Cass. Civ. 2004 No. 10774) referring in particular to Article 2077 of the Civil Code.
Article 2 of the 2009 CSA regulates what are the principal's powers to unilaterally change, i.e. without the need for express approval by the agent, the commissions and products promoted by the agent. This rule provides that, unless otherwise agreed by the parties, such changes may be:
"by minorshall mean reductions of up to 51T3T of the agent's or representative's commissions in the calendar year (1 January - 31 December) preceding the change, or in the twelve months preceding the change if the preceding year was not worked in full;
by medium size, meaning reductions that affect more than 5% and up to 15% of the agent's or representative's commissions in the calendar year (1 January - 31 December) preceding the change, or in the twelve months preceding the change if the preceding year was not worked in full;
by majorby which is meant reductions in excess of 15% of the agent's or representative's commissions in the calendar year (1 January - 31 December) preceding the variation, or in the twelve months preceding the variation if the previous year was not worked in full. "
The rule also states that:
"The variations of minor may be implemented upon written notice to the agent or representative to be given without notice. Such changes shall be effective upon receipt of written notice from the principal by the agent or representative.
Medium and major variations may be implemented upon written notice to the agent or representative to be given, in the case of variations of medium-sized, at least two months in advance, unless otherwise agreed in writing between the parties. In the event of changes in major written notice may not be less than that provided for the termination of the relationshipunless the parties agree in writing to a different term. If the agent or representative communicates, within the peremptory term of thirty days from the receipt of the communication, that it does not accept the medium or major variations, the principal's communication shall constitute notice for the termination of the agency or representation relationship, at the initiative of the principal. "
"L'set of minor variations made in a period of 18 months prior to the last variation, will be considered as single variationfor the application of this Article 2, both for the purpose of requiring notice and for the purpose of considering the relationship as terminated at the initiative of the principal. For agents and representatives acting as sole agents, all minor variations made within a period of 24 months preceding the last variation shall be deemed to be a single variation. "
It follows from reading this article, therefore, that:
- on the one hand the principal is conferred a potestative right to make changes that lead to a decrease in the products promoted and the commission of its agent;
- on the other hand the agent, for the medium to large variations, has the right to communicate its refusal within 30 days from receipt of the notice, thus transforming it into a notice of termination at the initiative of the principal.
The above-mentioned rule only regulates changes to the contract by the principal, aimed at decreasing the amount of the commission and the area (products, clientele, territory).
Since Art. 1752 of the Civil Code provides that the agency agreement must be evidenced in writing, it follows that amendments are also valid only if they comply with this requirement. Importantly, the law does not require the written form "ad substantiam"but "ad probationem"This implies that it is not necessary for the modification, in order for it to be effective between the parties, to be expressly agreed upon in writing, but it is sufficient that the agreement on such a modification can be inferred even only from tacit conduct of the parties and that there is a written record of such conduct.
