Direito Civil - Aula #177 - Agência e Distribuição (É isso!)

Summary

This video delves into the distinctions between agency, distribution, and brokerage contracts. It explains the roles of agents and distributors, focusing on their autonomy, responsibilities, and compensation, such as commissions. The video emphasizes that agency contracts involve intermediaries promoting business without dependency on the proposer, while distribution contracts include stock management. It also highlights the legal framework governing these contracts, including termination rights, exclusivity, and retention. Additionally, the brokerage contract is discussed as a well-known intermediary agreement. The terminology surrounding these contracts, such as 'we' and 'proposer,' is also clarified.

Takeaways

• 😀 An agency contract involves two autonomous parties: the proposer and the agent, with no superior-subordinate relationship.
• 😀 The agent's role is to promote business between the proposer and a third party, with the agent acting as an intermediary.
• 😀 An agency contract has continuity and expectation; it’s not an occasional arrangement.
• 😀 The modern agency contract is an updated version of the commercial representation contract, established in 1965.
• 😀 The agent may or may not have exclusivity in the area they represent, and is entitled to commission for closed business within that area.
• 😀 The remuneration for the agent is usually a commission, but it’s distinct from a commission contract.
• 😀 The agent is entitled to commission even if the deal isn’t closed, as long as it’s the proponent's fault.
• 😀 Agency contracts for an indefinite period require a 90-day notice for termination, unless there's just cause for immediate termination.
• 😀 If an agency contract is fixed-term, any business completed before the termination must be paid out, along with any losses or damages due to fault.
• 😀 When the agent holds stock of goods, the contract becomes a distribution contract, and the agent is called a distributor.

Q & A

What is the primary distinction between an agency contract and a distribution contract?

The primary distinction is that in an agency contract, the agent acts as an intermediary promoting business between the third party and the proposer, without holding stock. In a distribution contract, the distributor holds stock of goods and sells them directly to third parties.

Who are the two parties involved in an agency contract?

The two parties involved in an agency contract are the proposer (the company or individual offering the products/services) and the agent (the intermediary who promotes business between the proposer and the third party).

What is the role of the agent in an agency contract?

The agent’s role is to promote business between the third party and the proposer, essentially acting as an intermediary. The agent does not directly make the deal or hold stock of goods, but facilitates the relationship between the proposer and third party.

What is the law’s stance on the agency relationship?

The law requires that the agency relationship be continuous and not occasional. Both parties must have an expectation of ongoing business, meaning it is a long-term, rather than a one-time, arrangement.

Can an agent have exclusivity in an area, and how does it work?

Yes, an agent can have exclusivity in an area. This means that any business in that area, even if the agent did not directly close the deal, will result in the agent receiving remuneration. The exclusivity can vary depending on the contract's terms.

What happens if the agency contract is terminated before its end date?

If the agency contract is terminated early, the party terminating it must provide a 90-day notice, unless the termination is for just cause. If the contract is for a fixed term, any completed commissions must still be paid.

How are commissions handled in the agency contract?

Commissions are typically a percentage of the sales or business generated by the agent. If a deal is not closed due to the proposer’s fault, the agent may still be entitled to commission. The commission structure varies and may include remuneration for services provided even if the deal is not completed.

What is meant by 'right of retention' in the context of an agency contract?

The right of retention allows either party in the agency contract to retain certain benefits if the other party has outstanding obligations. For example, if the proposer owes money to the agent, the agent can retain commission payments until the debt is settled.

What is the difference between an agent and a distributor in terms of stock?

An agent does not hold stock of the goods and only acts as an intermediary. A distributor, on the other hand, holds stock of goods and sells them directly to third parties. This is the key distinction between the two roles.

What is the legal framework surrounding commercial representation?

Commercial representation is a regulated profession, and agents or distributors are often governed by laws such as the commercial representation law. This includes guidelines on commissions, exclusivity, and rights of retention. A specific council, called the Core Representation Council, exists to regulate this profession.