Contrato de Agencia Comercial en España: Derechos, Obligaciones y Extinción (2026)

# Commercial Agency Agreements in Spain: Rights, Obligations and Termination (2026)

A commercial agency agreement is one by which a person (the agent) undertakes, on a continuing and stable basis and in exchange for remuneration, to promote commercial transactions on behalf of another party (a business or principal), or to promote and conclude such transactions on the principal's behalf and in the principal's name. It is governed by Ley 12/1992, of 27 May (the Commercial Agency Act, hereinafter "LCA"), which transposes Directive 86/653/EEC.

1. Characterisation and Distinction from Related Figures

Essential elements of a commercial agency agreement:

• Acting in another's name or on another's behalf (not in one's own name, as is the case with a commission agent)
• A stable and continuing relationship (not occasional, as with a mercantile commission)
• Remuneration (commission and/or fixed fee)
• Independence of the agent (the agent is not an employee of the principal)

Key distinctions:

• Agent vs. salaried sales representative: the agent is self-employed; the sales representative is an employee (trabajador por cuenta ajena) under the Estatuto de los Trabajadores (Workers' Statute)
• Agent vs. distributor: the distributor acts in their own name, buying and reselling; the agent acts on the principal's behalf without acquiring the goods
• Agent vs. commission agent: the commission agent acts on an individual transaction basis; the agent acts on a stable, ongoing basis
• Agent vs. concessionaire: the concessionaire purchases and resells under an exclusive agreement; the agent does not acquire the product

2. Obligations of the Agent (Arts. 9–12 LCA)

1. Diligently attend to the promotion and, where applicable, conclusion of the transactions entrusted
2. Communicate to the principal all information available regarding clients' financial standing and market conditions
3. Act in accordance with the principal's reasonable instructions, provided these do not undermine the agent's independence
4. Maintain separate accounts for the transactions of each principal on whose behalf they act
5. Maintain confidentiality regarding commercial information received

Non-competition obligation (Art. 7 LCA): the agent may not represent companies that compete with the principal without express consent, unless the agreement expressly permits this.

3. Obligations of the Principal (Arts. 13–16 LCA)

1. Make available to the agent the necessary documentation, samples and resources
2. Provide the agent with the information necessary to perform the agreement
3. Notify the agent, within a reasonable period, if the anticipated volume of transactions is expected to be significantly lower than expected
4. Pay the agreed remuneration within the agreed time limits
5. Inform the agent of the acceptance, rejection or execution of the transactions procured

4. The Agent's Commission

Right to commission (Art. 17 LCA): the agent is entitled to commission for:

• Transactions concluded during the term of the agreement as a result of the agent's activity
• Transactions concluded during the agreement with clients previously brought in by the agent
• Transactions concluded after termination of the agreement, where these were procured principally through the agent's efforts during the term

Basis of calculation: on the price or total value of the transaction, unless otherwise agreed

When commission accrues (Art. 18 LCA): commission accrues at the moment the principal executes or should have executed the transaction, or when the third party executes it.

Extinguishment of the right to commission (Art. 20 LCA): if a transaction ultimately does not proceed for reasons not attributable to the principal, the right to commission may be extinguished or reduced; if the failure to proceed is attributable to the principal, the right to commission is preserved in full.

Settlement (Art. 21 LCA): at least monthly, the principal must provide the agent with a statement of accrued commissions containing the information necessary to verify the calculation.

5. Exclusivity Clauses (Art. 7 LCA)

An exclusivity clause may operate:

• In favour of the agent: the principal undertakes not to engage other agents in the designated territory or sector
• In favour of the principal: the agent may not represent competing companies

Territorial or sector-based exclusivity must be clearly defined. Breach gives rise to contractual liability.

6. Termination of the Agreement

6.1 Termination for Breach

Either party may terminate the agreement in the event of a material breach by the other (Art. 26 LCA), with the right to claim damages.

6.2 Unilateral Termination by Notice

Open-ended agreements: either party may terminate by giving the following minimum notice (Art. 25 LCA):

• 1 month's notice during the first year
• 2 months' notice during the second year
• 3 months' notice from the third year onwards

Failure to give adequate notice gives rise to an obligation to pay compensation equivalent to the average monthly remuneration for the notice period not observed.

Fixed-term agreements: the agreement expires at the agreed end date. If tacitly renewed, it becomes an open-ended agreement.

6.3 Termination for Cause (Without Notice)

Available where circumstances arise that make it unreasonable to require continuation (Art. 26 LCA): insolvency, breach of essential obligations, or force majeure preventing performance.

7. Goodwill Indemnity (Art. 28 LCA)

This is the most litigated provisión of Ley 12/1992. Upon termination of the agreement, the agent is entitled to a goodwill indemnity if:

1. The agent has brought in new clients or appreciably increased business with existing clients
2. The principal continues to derive substantial benefits from those commercial relationships
3. The amount is equitable having regard to the circumstances

Maximum amount: one year's remuneration, calculated as an average of the remuneration received over the last 5 years (or over the duration of the agreement if it lasted less than 5 years).

Compatibility: the goodwill indemnity is compatible with a damages claim (Art. 29 LCA) where termination is attributable to the principal.

Limitation period: 1 year from termination of the agreement (Art. 31 LCA).

Exclusión (Art. 30 LCA): the agent loses the right to indemnity if:

• Termination is attributable to the agent (unless the agent terminated for justified cause due to the principal's conduct)
• The agent assigns to a third party the rights and obligations under the agreement

8. Compensation for Damages (Art. 29 LCA)

Where the agreement is terminated by unilateral decisión of the principal (unjustified notice or termination attributable to the principal), the agent is entitled to additional compensation for:

• Expenditure incurred at the principal's request that has not been recouped
• Loss of commissions that would have been earned had the agreement been performed normally

9. Case Law of the Tribunal Supremo (Supreme Court)

STS 20 July 2006: the goodwill indemnity does not require proof of a specific financial loss; it is sufficient to establish that new clients were brought in and that the principal continues to benefit from those relationships.

STS 15 January 2013 (appeal no. 2080/2010): the requirement of "substantial benefits" is assessed at the time of termination, not at the time the claim is brought. A mere reduction in the principal's sales does not extinguish the right.

STS 13 March 2018 (appeal no. 1568/2016): a post-contractual non-competition clause (Art. 6 LCA) does not affect the right to a goodwill indemnity where separate compensation has been agreed for that clause.

CJEU judgment of 26 March 2009 (C-348/07): Directive 86/653 sets minimum standards; Member States may extend agents' rights but may not reduce them. Clauses excluding the goodwill indemnity are void.

10. Jurisdiction and Arbitration

Disputes concerning commercial agency agreements fall within the jurisdiction of the Tribunal de Instancia Mercantil (Commercial Court) of the agent's domicile (Art. 52.1.11 Ley de Enjuiciamiento Civil: Code of Civil Procedure). Arbitration clauses (ICC, CAM) are common in international agreements.

Rome I Regulation (Art. 17) provides that, in the absence of a choice of law, a commercial agency agreement is governed by the law of the country in which the agent has their habitual residence.

11. Practical Considerations

When drafting a commercial agency agreement:

• Precisely define the geographic territory and/or sector of activity
• Specify the type of exclusivity (if any) and its consequences
• Set out the commission rate and the transactions that give rise to it
• Regulate the agent's right to information and access to the principal's accounts
• Address the treatment of the client portfolio upon termination

When pursuing a goodwill indemnity claim:

• Document the clients brought in, with identification details and billing records
• Quantify the additional business generated with pre-existing clients
• Establish the continuation of the principal's sales to those clients after termination
• Calculate the average remuneration over the last 5 years

Lexiel identifies the applicable case law of the Tribunal Supremo (Supreme Court) and the Court of Justice of the European Union (CJEU) on goodwill indemnities in specific sectors, assists in quantifying the claim, and drafts the statement of claim for filing before the Tribunal de Instancia Mercantil (Commercial Court).