ITA 
“If the pending agency agreement is terminated by a conclusive act, with the order that excludes the claims relating thereto from the insolvency of the principal, the agent shall be entitled to be admitted to it for the claims accrued by way of indemnity in lieu of notice and supplementary clientele payments”.
Thus, the Court of cassation, with its judgment no. 10046 of 14 April 2023.
The case addressed in the judgment originates from an agent’s challenge to the order fixing the state of insolvency of the company for which he worked, to which he was admitted in respect of commission claims but excluded in respect of all other emoluments, especially for the supplementary clientele indemnity and loss of notice.
According to the Court of first instance, the exclusion of those indemnity was motivated by the ope legis termination of the agency agreement for the bankruptcy of the principal due to the inapplicability, given the agency relationship’s fiduciary nature, of the general suspension rule for pending agreements provided for by the Article 72 of the Italian insolvency law, according to which the performance of an agreement, of which one of the parties has been declared insolvent, remains suspended until the bankruptcy receiver, authorised by the creditors’ committee, declares his willingness to succeed.
In this way, the Court of Merit assimilated the agency agreement to the mandate agreement, thus applying the Article 78 of the aforementioned law – which provided, prior to the reform, for the termination of the agreement in the event of insolvency of one of the parties.
The Court of Cassation, addressed by the issue, admitted a discordant positions in doctrine and case law, about the applicability, to the agency agreement, of the Article 72 or 78 of the Insolvency law, and recalled what are the distinguishing features for the purpose of classifying a relationship as a mandate and as an agency, identifiable in the stability and nature of the assignment. The agency agreement, indeed, provides for the performance of an activity in a stable and continuous manner, unlike the mandate agreement which concern an episodical activity performed with no stability strings attached.
So, continues the Court, only those rules relating to the agency agreement that do not presuppose a stable and predetermined character of the relationship (e.g. relating to the commissions) may be applied by analogy to the mandate agreement and not also those that do, such as indemnities linked to the termination of the employment (notice and supplementary clientele).
The Court concludes clarifying that, even if the rules provided for the mandate contract by Article 78, Insolvency Law, ratione tempore applicable, were deemed applicable to the agency agreement, however the termination of the agreement, ipso iure, would only occur in the event of insolvency of the mandatary (i.e. the agent) and not also of the mandator (i.e. the principal).
