19 Jun The Commercial Commission Contract in Spain: Basic Principles

It is common practice in business dealings for an entrepreneur or trader to entrust a third party with the performance of certain commercial operations on their behalf. One of the legal instruments available under Spanish law to structure this relationship is the commercial commission contract (contrato de comisión mercantil), governed by Articles 244 et seq. of the Spanish Commercial Code.

Its subject matter is, specifically, the performance of one or more commercial acts or transactions at the request of one party for the benefit of another, in exchange for remuneration or a commission. The commission agent (comisionista) undertakes to perform or participate in one or more commercial transactions on behalf of the principal (comitente).

When does a commercial commission arise under Spanish law?

Under Spanish law, the commercial commission contract is a non-formal, consensual agreement. Acceptance may be express or tacit — tacit acceptance occurs when the commission agent begins taking steps to carry out the principal’s instructions.

The precise legal definition is provided by Article 244 of the Spanish Commercial Code, which defines a commercial commission as a mandate satisfying two fundamental requirements:

• Its subject matter must be a commercial act or transaction.
• Either the principal or the commission agent must be a trader or commercial intermediary.

The commission agent always acts on behalf of the principal and may do so in one of two ways: in their own name, or in the name of the principal.

Where the commission agent acts in their own name, they contract directly with the third party and, as a general rule, no direct legal relationship arises between that third party and the principal. Where the commission agent acts in the name of the principal, however, the rights and obligations arising from the contract fall directly on the principal, who becomes bound vis-à-vis the third party.

This distinction is significant, as it will determine — when the time comes — who is formally bound towards third parties and against whom any claims or actions arising from the transaction may be brought.

A commission contract may be terminated on the general grounds applicable to contracts, including:

• The completion of the commissioned task.
• The expiry of the agreed term.
• Mutual agreement.
• The supervening impossibility of performance.

In addition, the contract may be terminated by unilateral revocation by the principal, given that the agreement is founded on a relationship of trust. In such a case, revocation only takes effect when it comes to the knowledge of the commission agent, without prejudice to any financial consequences that may arise if the principal has exercised that right abusively.

Differences from related legal instruments

It is important not to confuse the commercial commission contract with other instruments used to promote, facilitate, or conclude commercial transactions — such as the civil mandate, the commercial agency agreement, brokerage, and the service agreement.

First, as regards the civil mandate: in a commission contract, the act entrusted must always be commercial in nature and connected to business dealings — something that does not apply to a civil mandate.

Second, as regards the commercial agency agreement, the main difference lies in the duration and continuity of the relationship: whereas a commission contract typically refers to a specific transaction or a defined set of tasks, a commercial agency agreement normally involves an ongoing, stable collaborative arrangement.

Third, the commission contract should be distinguished from brokerage. A broker is generally limited to bringing the parties together to facilitate the conclusion of a deal, maintaining an independent position in relation to both. The commission agent, by contrast, acts in the interests of the principal and may intervene directly in the conclusion and performance of the commissioned transaction.

Finally, in a service agreement the primary object is the performance of a specific material or professional activity, whereas the commission contract — as noted above — is directed at the performance of legal acts or transactions on behalf of a third party, with remuneration typically linked to the transaction managed or the result achieved.

What are the parties’ obligations under a commercial commission contract?

It is clear, then, that the commission agent must personally perform the commissioned task (except in cases of sub-commission). They must carry it out with the standard of diligence expected of a professional in their field and are subject to, among others, the following obligations:

• Follow the instructions given by the principal.
• Keep the principal informed of the progress and outcome of the transaction.
• Communicate any relevant circumstances that may affect the successful completion of the commission.
• Account for their conduct and justify any expenses incurred.
• Take proper care of any goods, merchandise, or funds received.
• Be liable for any loss caused by non-performance or negligent performance of the commission.

Furthermore, the commission agent must not act in a manner incompatible with the commission in pursuit of their own interests, conduct credit transactions without authorisation, or mix merchandise belonging to different owners where this could give rise to confusion.

For their part, the principal also has obligations of their own. The main ones are as follows:

• Pay the agreed commission.
• Reimburse duly justified and necessary expenses.
• Advance funds where necessary for the performance of the transaction.
• Bear the consequences of any transactions validly entered into by the commission agent within the scope of the commission.

The importance of drafting the commission contract correctly

A well-drafted commission contract enables the parties to define their respective rights and obligations with clarity, minimise risk, and prevent future disputes — providing greater legal certainty to the commercial relationship.

At Navarro Llima Abogados we offer specialist advice to businesses and professionals on the drafting, review, and negotiation of commercial contracts, ensuring that every agreement is tailored to their needs and effectively protects their interests from the outset of the commercial relationship.