Article. 1743 c.c. provides for exclusive bilateral rights, for the benefit of both the principal and the agent, establishing that “the principal cannot simultaneously use several agents in the same area and for the same branch of activity, nor can the agent assume the position of dealing in the same area and for the same branch with the business of several companies in competition with each other ”.
The right of exclusivity arises, therefore, automatically in respect of both contractors, unless otherwise agreed between them, given that it constitutes a natural, and not necessary and essential, element of the agency contract.
There may be several hypotheses in which an exception to this right takes place: the area can be conventionally limited to a particular category of potential customers (for example, the public administration, wholesalers, large-scale distribution, etc.) or to a specific group of people.
In particular, the principal and the agent can agree, at the origin of the agency relationship or during the execution of the same, that the former maintains a direct relationship, i.e. without the interposition of the collaborator, with one or more specifically identified clients , commonly referred to as "directional", although they are located in the exclusive area of the agent and despite deals concluded by the principal which concern products covered by the agency contract.
The clause concerning executive clients (to be indicated by name) is very widespread in negotiation practice, given that the latter usually have a primary importance for the principal, due to their peculiar type, which makes more complex negotiations or conditions necessary, sale different from the ordinary ones, or of the huge quantities of goods ordered, which make it attractive for the principal house to avoid liquidating the commissions which, without said clause, would be due to the agent, given that the art. 1748, c. 2, c.c. provides that "the commission is also due for business concluded by the principal with third parties that the agent had previously acquired as customers for business of the same type or belonging to the area or to the category or group of customers reserved to the agent, unless it is otherwise agreed ”.
In other words, the principal can directly conclude business in the area reserved exclusively for an agent, except, then, to liquidate the commission indirectly coming from such business.
However, the contrary agreement providing for some customers, reserved for the direct negotiation of the principal and, therefore, removed from the agent, who is not entitled to commission for business concluded with such customers is also lawful.
However, given the vexatious nature of such a pact, it is conditional - for its validity - on the written formulation and the explicit acceptance of the agent, a "weak" contractor. (CP)
