La indemnización por clientela en el Contrato de Distribución
As we already highlighted in our previous article < strong>Key aspects of a Distribution Contract, this contractual typology lacks specific regulation in our legal system, so its legal regime is determined by what was agreed between the parties, in a supplementary manner by what established in the Commercial Code and the Civil Code, and failing that by the Agency Contract Law (hereinafter, LCA) which is applicable analogically.
Focusing on clientele compensation, according to consolidated jurisprudence article 28 LCA can be applied by analogy so that a distributor is entitled to compensation per clientele provided for the agency contract, as long as the requirements of the aforementioned article are met. In other words, its application is not automatic, but it is necessary to prove that thanks to the work of the distributor, customers have been created that have benefited the grantor.
The Supreme Court has also established that an absolute analogous application of the rules referring to the unilateral termination of the agency contract cannot be made in the distribution contract, since the contract distribution has its own peculiarities. For example in the compensation system. According to article 11 LCA, the agent will receive a fixed remuneration or a commission, while the distributor’s remuneration meets other criteria.
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Due to both the lack of regulation and the lack of unanimity of the jurisprudence, there were doubts to quantify the compensation for the distributor’s clientele. The profit received by the distributor is a commercial margin and not a remuneration like that of the agent. Therefore, it was not clear which criterion to follow to calculate the compensation, the gross margin (difference between the purchase price and the sale price) or the net margin (distributor’s profit after deducting expenses and taxes).
These problems have been resolved by the Civil Chamber of the Supreme Court in its judgment 317/2017 of May 19, concluding that the criteria that must be applied to calculate the compensation per clientele for the distribution contract is net profit minus expenses and taxes. It thus confirms its previous pronouncements of judgments 356/2016 of May 30 and 137/2017 of March 1.
In the case resolved by the aforementioned judgment, we find ourselves before the unilateral resolution by the grantor of an exclusive distribution contract of indefinite duration, which did not have a notice clause . This fact leads to the filing of a claim by the distributor, in which an order to compensation for clientele is requested, for lack of prior notice, for the amount of stock of products at sale price, for unamortized expenses and for the unpaid bonus.
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In the first instance, the claim was partially upheld. The Court considered that the plaintiff was entitled to compensation for customers, established by the gross margin criterion, as well as that derived from the lack of prior notice, and the defendant had to also take charge of the distributor’s stock at cost price.
On appeal, the Provincial Court partially revoked the first instance ruling, stating that the distributor was not obliged to maintain a certain stock of products, since it bought from the grantor the products it the clients requested, not estimating the obligation to repurchase the stock from the plaintiff. Finally, the Supreme Court considered that the distributor was entitled to require the grantor to repurchase the stock according to the acquisition price.
In conclusion, for distribution contracts< /a>, in terms of compensation for clients, the provisions of article 28 LCA can be applied, as long as the effective contribution of clients that benefit the grantor is proven. The calculation of said compensation must be made on the net margin, that is, the distributor’s profit after deducting expenses and taxes.
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