The Judgment No. 532/2026, dated 9 April, of the Supreme Court, has consolidated the doctrine regarding goodwill indemnity in agency agreements, with a particular impact on the distribution and marketing sectors of products and services.
In the case under review, the Supreme Court upheld the appeal in cassation brought by a commercial agent against its principal and ordered the latter to pay the goodwill indemnity in full, calculated in accordance with Article 28 of Law 12/1992 on Agency Agreements (LCA), without applying the 50% reductions that had been granted both at first instance and on appeal.
The judgment highlights three key principles:
Mandatory nature of the LCA and the goodwill indemnity.
The Supreme Court reiterates that the provisions of the LCA are mandatory in nature (Article 3.1), in accordance with an interpretation consistent with Article 17 of Directive 86/653/EEC. Consequently, the regulation of the goodwill indemnity under Article 28 LCA cannot be modified to the detriment of the agent, whether by contractual agreement or judicial decision.
Nullity of clauses that limit the indemnity in advance.
The Chamber declares null and void, pursuant to Article 6.3 of the Civil Code, the contractual clause that allowed the indemnity to be reduced on the basis of factors such as the reputation of the brand, marketing campaigns, or the principal’s market leadership. The Court states that any agreement entered into before termination of the contract which limits the agent’s right to obtain the maximum amount provided for under Article 28.3 LCA is contrary to a mandatory legal provision and is therefore null and void ab initio.
Prohibition of judicial moderation of the “quantum” based on general criteria.
The judgment confirms that, once the requirements of Article 28.1 LCA have been established (the acquisition of new customers or a substantial increase in business and significant benefits for the principal), the indemnity must be calculated on the basis of the average annual remuneration received during the previous five years. The judge may not apply percentage reductions based on general considerations such as market volatility, brand recognition, or the intensity of marketing activities.
With this decision, the Supreme Court reinforces a line of case law that had already been established in previous judgments and sends a clear message to the market: goodwill indemnity is a protected right of the agent, subject to a mandatory legal regime, and cannot be restricted by contractual arrangements or reduced through judicial discretion outside the strict legal parameters set by law.
