Agency Agreement and the Compensatory Nature of Non-Compete Clauses: Commentary on Order No. 23331 of 2024

The recent Order No. 23331 of August 29, 2024, issued by the Court of Cassation, sheds light on relevant aspects concerning agency agreements, particularly regarding the indemnity linked to non-compete clauses. This ruling contributes to the current legal debate, providing useful clarifications for industry operators and legal professionals.

Regulatory Context and the Ruling

The case at hand concerns the dispute between D. (B. L.) and S. (M. A. M.), and focuses on the interpretation of Article 1751-bis of the Civil Code, which governs the indemnity for non-compete clauses in agency agreements. The Court established that the inherent compensatory nature of such a clause is waivable, and consequently, the methods for calculating and paying the indemnity can also be agreed upon by the parties. This implies that the indemnity can be disbursed not only through direct payment but also via commission-based compensation and advances, with a final settlement.

INDEMNITY - IN GENERAL Agency agreement - Compensatory nature of the non-compete clause pursuant to art. 1751-bis c.c. - Methods of calculation and payment of the indemnity - Waivability - Existence - Reasons. In the context of agency agreements, since the inherent compensatory nature of the non-compete clause under art. 1751-bis c.c. is waivable by the parties, the methods for calculating and paying the related indemnity are a fortiori waivable, and can therefore also be disbursed, as in the present case, through commission-based compensation and advances during the term of the agreement, subject to final settlement.

Practical Implications of the Ruling

This decision by the Court of Cassation has significant practical repercussions for companies and commercial agents. In particular, the possibility of waiving the methods for calculating the indemnity allows for greater flexibility in negotiations and commercial relationships. Among the issues arising from this ruling, we can highlight:

• Flexibility in payment methods: parties can decide how and when to make payments.
• Possibility of advances: agents can receive advances during the agency relationship, improving their liquidity.
• Relevance of negotiation: the will of the parties becomes central in defining contractual terms.

Conclusions

In conclusion, Order No. 23331 of 2024 represents an important step forward in the regulation of agency agreements, emphasizing how flexibility and contractual freedom can foster a more dynamic and profitable management of commercial relationships. It is crucial for industry operators to fully understand the implications of this ruling in order to best leverage the opportunities offered by the waivability of contractual conditions.