O contrato de representacao comercial
We regularly produce client briefings and newsletters that address legal developments, industry issues and their impact on the markets where our clients operate, providing you with our views on up-to-date information. After several false starts, with the recent enactment of the Civil and Commercial Code, the agency, distribution and concession agreements have had legislative reception.
This legal text is the immediate antecedent of the unified draft Code of and was written taking into account an important part of the extensive case law. Section states that clauses redirecting to forecasts, documents or information not provided to the counterparty at the time of signing the contract, shall be deemed not agreed.
O contrato de representacao comercial states that ambiguous clauses shall be construed against the proponent. Section stipulates that clauses shall be deemed unwritten when they: Section gives the judge unprecedented powers to form part of the contract, a faculty that, until now, case law had rejected. The implementation of these rules will surely converge in the drafting of contracts with clear and concise terms, with self-sufficient forecasts and without redirected references, with a new balance between the powers and duties of the parties and without advance waivers of fundamental rights.
The legal text provides that the contract must be executed in writing but does not indicate the legal consequences of not doing so. Section provides that the agent is entitled to exclusivity in the field of business, in a geographical area or for a group of people, specifically determined by the contract.
As a standard available to the parties, it admits to be agreed otherwise non-exclusive agency contract. On the other hand and with respect to the inverse relationship, in principle the agent can hire the services to other businesses Section Sections and establish obligations of the agent and the principal by using an o contrato de representacao comercial that is not exhaustive.
If the remuneration is not agreed on Section o contrato de representacao comercial that a variable remuneration must be fixed according to uses and customs. O contrato de representacao comercial sets some guidelines for determining the commission. Section allows for non-compete clauses, which can only be extended for one year after the termination of the contract.
Section prevents the agent from appointing subagents without the express permission of the principal. This standard is interesting since it indicates that the agent is jointly and severally liable for the actions of the sub-agent, who has no direct link with the principal. It is an accepted principle that the term of a marketing contract is essential for the fulfilling of its purpose.
Legal scholars and case law have long held that the minimum term of the contractual relationship should be the time needed for the agent to amortize investments and obtain a reasonable profit, linked to the legitimate expectations generated at the time the contract was agreed on. Conversely to what happens in the regulation of the minimum term of the concession and distribution contracts by referencewhich is of four years, and o contrato de representacao comercial contract which is of two years, there is no mention in the new Code of the minimum term of the agency contract.
However, from the harmonious interplay of Sections andsome legal opinion understands that it should not be less than one year. Section provides that the agency o contrato de representacao comercial is for an indefinite period, unless otherwise agreed.
If the relationship continues after the expiry of the contractually set deadline, the rule clarifies that it will automatically become an indefinite term agreement. In cases of agency agreements of indefinite term, the omission or insufficiency of the prior notice gives the agent the right to claim to the principal: Section enumerates —not limited to— certain grounds for termination of contracts with and without fixed term.
This rule applies to contracts with and without fixed term. This standard refers to a payment which is not part of the essence of the concession contract, in which the principal does not pay any remuneration to the concessionaire, o contrato de representacao comercial the profits of the concessionaire arise from the difference existing between the price of the product that pays the principal and the retail price. Although sometimes there may be mixed situations, for instance what happens when the concessionaire for automobile sales acts as an agent in the operation of the saving system, what is certain is that also in this case the commission paid by a company linked to the manufacturer also comes from the price gap existing between the price paid by the concessionaire and the o contrato de representacao comercial price.
Unless otherwise agreed, exclusivity in the assigned area is bilateral Section The same rule requires the principal to provide a whole range of products to the concessionaire for its marketing.
Sections and list —but not limited to— the obligations of the principal and the concessionaire. Section provides that the concession o contrato de representacao comercial not have a period shorter than o contrato de representacao comercial years or 2 years in the event that the manufacturer is providing the facilities to the concessionaires.
Any shorter period will be deemed not written. Once the minimum term of the concession agreement has elapsed 4 or 2 yearswhere the law presumes that the business purpose has been minimally met, the principal can terminate the contract by providing an adequate prior notice, applying the guidelines of Sectionof one month per year of antiquity. Following the guidelines of a major part of the commercial case law of the last decade, the new rule states that if the prior notice is inadequate or does o contrato de representacao comercial exists, the principal must compensate the concessionaire by paying him the earnings that the concessionaire was deprived from during the period that would have corresponded to the prior notice Section In principle, according to the legal text and the interpretations of the case law mentioned above, any other compensation item not specifically provided for by the rule would be incorporated into the amount corresponding to the compensation of the payment in lieu of notice.
This settles an issue which has been extensively discussed by legal authors and case law. With respect to the grounds for termination and the prohibition to appoint sub-concessionaires, the standards applicable to the agency agreement are applied by reference.
In view of the existing legal gap, when the application of the concession standards are not relevant, the patterns built by legal opinion and case law shall be considered.
O contrato de representacao comercial article is intended to provide readers with basic information concerning issues of general interest.
It does not purport to be comprehensive or to render legal advice. For advice about particular facts and legal issues, the reader should consult legal counsel. Curbing Bureaucracy and Simplifying Administrative Proceedings. The mail was successfully sent to the following recipients: Agency, distribution and concession agreements have had legislative reception o contrato de representacao comercial the new Civil and Commercial Code.
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