Customer indemnification waiver clauses

In the case law relating to distribution law, the compensation of the customer in the event of termination of the contractual relationship is by far the most argued and controversial issue. For this reason, it is particularly necessary to regulate this by contract. This raises the question of whether the customer compensation generated or expanded can be regulated or excluded altogether. The reasons could be that the marketed product is from a well-known brand that does not require a large customer recruitment or that the manufacturer largely supports the marketing activity economically.

While it is absolutely indisputable for the commercial agent that the payment of a customer indemnity at the end of the contractual relationship cannot be excluded or reduced by contract, this principle does not apply to distributors who are not governed by a special law. The admissibility of the exclusion of customer compensation in a distribution contract was recently confirmed by the Spanish Supreme Court.

In its judgment of 23 September 2020, proceedings for refusal of admission of an appeal, the Supreme Court ruled that there was no customer compensation in favor of a distributor of a well-known Madrid beer brand. , because it had been validly excluded contractually by the parties. The Spanish law on agency contracts was not applicable by analogy in this regard and the parties could legally exclude the claim for compensation within the framework of contractual independence.

The Supreme Court referred to its reiterated case law, considering that the client’s right to compensation is a “voluntary” right or a right ius dispositivum and, as such, the law allows the parties, within the limits of the ‘contractual independence, to exclude it; thus, the distributor is not entitled to any compensation in the event of termination of the contract.

This case law differs significantly from the legal situation in Germany, where as a rule a contractual exclusion for compensation of the customer is not possible. In this regard, Spanish legislation involves risks for distributors and advantages for manufacturers.

It should be added that in the absence of a contractual agreement, the distributor has, in principle, the right to compensation from the customer due to the application by analogy of the Spanish law on agency contracts. .

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