Decision by the Spanish Supreme Court on the Beginning of the Limitation Period for Sales Agents’ Commission Claims

31 January 2022 - Michael Fries

Sales agents are entitled to commissions for the business deals they have facilitated. An agent’s right to a commission becomes due as soon as the company carries out the transaction he/she had arranged. However, the law that governs trade representation in Spain does not provide a period within which the sales agent must claim their commission. In the absence of specific rules in this respect, the general regulations provided in the Civil Code come into play: according to the timescale specified there, a trade agents’ remuneration – as well as that of lawyers, notaries or medical doctors – may be claimed within a term of three years.

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Thanks to the Civil Code there is no debate about the duration of the limitation period but there has been extensive discussion about when it starts. As per the law, the limitation period commences at that point in time when the claimant “concludes his service”. The question is: when does a sales representative conclude their service? Is it when they finish acting as intermediaries, i.e., upon termination of the agency agreement? That is at least what the Spanish Law on Sales Agency Contracts provides in relation to a sales agent’s right to customer base compensation and to damages. These rights expire after one year from termination of the contractual relation. The relevant date is the day of termination of the agreement; this is in contrast to Germany, where the date taken into account is 31 December of the year of contract termination. This used to be a point to make for those who wanted to argue that the three-year limitation period of right to a commission does not start until the contract is terminated. However, this interpretation has now been rejected: in a decision of 21 November 2021 the Supreme Court ruled that the limitation period for a sales agent’s commission claims begins upon execution of the business deal the agent has brokered. This is because the sales agency contract is a continuing obligation, in the framework of which the right to remuneration arises every time an individual deal arranged by the agent is executed by the company. Moreover, if the start of the limitation period were delayed until the ending of the contractual relation, which in many cases lasts for decades, this would lead to an unreasonable extension of the limitation period.

When the right to a commission is nearing the point of becoming time-barred, it is good to know that in Spain it is possible to interrupt the limitation period. For this purpose, it is not necessary, as for instance in Germany, that the claim is asserted in court by way of debt enforcement proceedings or a lawsuit. It is usually sufficient for the debtor to receive an out-of-court payment request. Its delivery should be verifiable, which is usually achieved in Spain by sending the request via “burofax.” This registered fax service ensures that the debtor does receive the letter, with delivery being officially certified and a certification of the content of the letter being provided, too.

In conclusion, a sales agent can – and should – make sure that any outstanding commission payments are enforced while the contractual relationship lasts, in good time and meeting the formal requirements.