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Tra gli obblighi dell’agente può essere incluso anche quello di incassare i pagamenti presso la clientela ed altresì quella di recuperare i crediti laddove i termini di pagamento siano ormai scaduti. E’ questa la c.d. attività di incasso.

Entrambe le predette attività sono da considerarsi accessorie; infatti, l’art. 1744 c.c. si limita a prevedere la necessità di una apposita ed espressa attribuzione della facoltà di riscuotere i crediti del preponente.

La contrattazione collettiva precisa che l’attività di incasso deve essere remunerata con un compenso aggiuntivo oltre a quello direttamente collegato alla promozione della conclusione di contratti, in quanto, in assenza di ciò, il recupero degli insoluti rientra comunque nell’attività dell’agente senza necessità di un compenso ulteriore.

Nello specifico, l’AEC settore industria prevede che nell’ipotesi in cui venga conferito all’agente un apposito incarico di svolgere attività di incasso presso la clientela, con responsabilità per errore contabile, deve essere contrattualmente individuata una provvigione separata o un compenso aggiuntivo per tale attività accessoria.

L’AEC settore commercio ha stabilito invece che deve essere corrisposto un compenso in forma non provvigionale.

Quindi, in via generale, in mancanza di previsioni contrattuali, la semplice attività di recupero degli insoluti non può essere qualificata come attività di incasso vera propria e non dà diritto, dunque, ad alcun compenso aggiuntivo, in assenza di un preciso conferimento dell’incarico a riscuotere, di una continuità dell’incarico e di una responsabilità per errore contabile.

Al riguardo la giurisprudenza ha chiarito che qualora con l’originaria stipulazione del contratto di agenzia sia stata prevista la facoltà dell’agente di riscuotere i crediti del preponente, l’esercizio di tale facoltà non dà luogo ad un autonomo rapporto e non richiede uno specifico compenso, ma si deve considerare compreso nell’opera globalmente dovuta dall’agente e remunerata con le provvigioni; qualora, invece, la facoltà e l’obbligo di esigere siano intervenute nel corso del rapporto deve ritenersi che l’attività di esazione costituisca una prestazione accessoria ulteriore rispetto all’originario contratto e richieda una propria remunerazione a termini dell’art. 2225 c.c.

Se le parti non hanno provveduto a stabilire il compenso in occasione dell’attribuzione dell’incarico né in corso di rapporto, sarà il giudice che lo determinerà in relazione al risultato ottenuto e al lavoro normalmente necessario per ottenerlo.

Nel caso in cui l’attività di incasso sia stata scolta al di fuori da qualsiasi incarico, può essere esperita unicamente l’azione generale di arricchimento ex art. 2041 c.c.


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