It is illegal to prepay compensation due to the trade representative for unmotivated termination

The 3rd Class of the STJ, judged to be illegal contractual clause that provides for advance payment of compensation due to the commercial representative on the occasion of unjustified termination of the contract by The represented.

At the time of the trial, the court ruled that the compensation to which a commercial representative is entitled In case of unilateral termination of the representation contract should not be paid in advance, but rather at the time when the link with the represented company is severed.

In the case under analysis, a brush supplier from Paraná unilaterally broke a contract that it maintained for 13 years with a representation company. In the contract there was a clause that provided for the payment of compensation in case of unjustified termination — as mandated by Article 27, “i”, Of Law 4.886/1965 —, however, the represented company refused to do so on the grounds that it had already paid the compensation in advance, along with the commissions received throughout the execution of the contract.

The representation company then went to court, but was defeated in the first and second instances. The Court of Justice of Paraná understood that the advance payment was the result of an agreement and that during the term of the contract the representative never challenged the form of compensation.

On the other hand, the STJ understood differently. For the court, the advance payment was an irregular maneuver by the brush supplier.

“The obligation to repair the damage only arises after the practice of the act that causes it (by logical imperative), so that, before the existence of a concrete damage capable of being repaired — which, in kind, is the unmotivated rupture of the avença—, there can be no talk of compensation”
minister Nancy Andrighi.

Also according to the minister, the indemnity clause has a compensatory character and its payment in advance circumvents law 4.886/1965. Andrighi argued that if the defendant’s intention was to avoid payment in a single installment, she should have deposited the amounts in a linked account maintained for that purpose.

Thus, the court understood that there is an imbalance in the relationship between the represented and the representative and that, for this reason, it is necessary that the latter has some type of protection in order not to be harmed.

See the published judgment:

REPRESENTAÇÃO COMERCIAL