Studio Legale Pistone

OBBLIGO DI NON CONCORRENZA NEL CONTRATTO DI AGENZIA: COSA SI INTENDE?

Ai sensi dell’art. 1743 codice civile, l’agente non può assumere l’incarico di trattare nella stessa zona e per lo stesso ramo gli affari di più imprese in concorrenza tra loro. Si tratta di un obbligo dell’agente che investe la stessa funzione del contratto di agenzia e pertanto ne costituisce elemento naturale, che sussiste quindi in assenza di contraria previsione.

L’agente non può quindi promuovere prodotti in concorrenza con quelli oggetto del contratto di agenzia; in caso di violazione di tale obbligo, risponde nei confronti del preponente a titolo di responsabilità contrattuale, con conseguente diritto del preponente alla risoluzione del contratto e al risarcimento del danno.

La giurisprudenza ha precisato in proposito che ai fini del rispetto dell’obbligo di non concorrenza rileva non tanto la produzione e commercializzazione di prodotti identici o simili da parte di più imprese quanto il mercato (cioè la clientela) al quale essi si rivolgono. L’agente può agire per conto di più aziende produttrici concorrenti, ma non anche per i prodotti in concorrenza con quelli oggetto dell’attività per cui ha assunto l’incarico. Dunque, se il preponente intende impedire all’agente di trattare con le imprese concorrenti in aree di mercato diverse da quelle stabilite nel contratto, per evitare che le informazioni riservate riguardanti un prodotto possano essere comunicate a terzi, dovrà inserire nel contratto una apposita clausola che preveda espressamente tale divieto.

Affinché si possa realizzare una inadempienza contrattuale dell’Agente non è sufficiente che quest’ultimo svolga la propria attività promozionale per conto di più imprese concorrenti, ma occorre altresì che l’attività in tal senso esercitata sia diretta a favorire la conclusione, nell’ambito di una “stessa zona”, di affari attinenti ad uno “stesso ramo”, ovvero affari relativi a prodotti omogenei e destinati alla medesima clientela.


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