Studio Legale Pistone

DIRITTO DI ESCLUSIVA

Varie possibilità di configurare la clausola di esclusiva nel contratto di agenzia

Secondo una interpretazione ormai pacifica, sia in dottrina che in giurisprudenza, l’esclusiva costituisce un elemento naturale e non essenziale del contratto di agenzia. Le parti possono, pertanto, escludere, limitare o estendere la portata di tale diritto. Gli stessi Accordi Economici Collettivi, peraltro, statuiscono tale possibilità, affermando che il divieto di porre in essere le condotte indicate vige “salvo diverse intese tra le parti”. Ne consegue che, in base all’art. 2697 c.c., stante la natura di elemento essenziale del diritto di esclusiva, l’eventuale sua richiede adeguata prova.

Sulla base degli accordi tra le parti sono possibili 4 ipotesi:

1) Esclusiva reciproca: diritto di esclusiva vantato da entrambe le parti sulla base di quanto previsto dall’art. 1743 c.c.;

2) Eliminazione dell’esclusiva per entrambe le parti: il preponente può incaricare altri agenti nella stessa zona dell’agente firmatario del contratto e quest’ultimo può operare per conto di altre ditte concorrenti;

3) Esclusiva a favore del solo agente: l’agente firmatario del contratto può operare per conto di più ditte concorrenti, mentre il preponente non può incaricare altri agenti nella stessa zona del primo, né può accettare in maniera sistematica le ordinazioni che gli provengono da altri agenti;

4) Esclusiva a favore del solo preponente: il preponente può sfruttare l’attività di più agenti nella stessa zona dell’agente firmatario del contratto, mentre quest’ultimo non può operare per conto di altre ditte concorrenti. In tale ipotesi l’agente si può trovare in competizione non solo con altri agente ma anche con lo stesso preponente che si sia riservato contrattualmente la possibilità di concludere direttamente affari nella zona assegnata all’agente al quale, in siffatta ipotesi, non spetterà il diritto ad ottenere le provvigioni indirette.

Occorre aggiungere che la deroga pattizia al regime dell’esclusiva nelle varie forme di cui sopra, non richiede una previsione espressa, potendo avvenire anche tacitamente o potendosi desumere indirettamente da condotte quali l’affidamento dell’incarico ad altri agenti nella medesima zona o dall’autorizzazione dell’agente a trattare affari per conto di un altra impresa.

Quando la deroga non è prevista espressamente bensì desunta in via indiretta, si richiede, tuttavia, che essa risulti in maniera chiara ed inequivoca.


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