The distribution contracts: An Iberian approach

Abstract

The contracts of commercial distribution are indispensable legal instruments to the development of the economic activity. The distribution, since the industrial revolution, acquired autonomy, given the necessity of specialized intermediation to distribute good and products. In this process, the structural organization of the distribution process suffered mutations, starting to assume a set of activities aiming at adjusting demand to supply, including, among others, clients canvassing, after-sales services, financing and assumption of risks, advisory services, promotion and advertising. The insufficiency of traditional contracts of purchase and sales and commission to satisfy the distributive needs caused by the industrial revolution will justify the development of new contractual schemes, such us agency contract, commercial concession and franchising. The obligation of the distributer to ensure the interests of the producer and to promote the distribution of the goods and services of the producer, in the context of a lasting relation of cooperation between the parts, through which the distributer is incorporated, with greater or minor intensity, in the producer distribution network, allowed us to sustain, as affirmed in the Portuguese and European literature, that distribution contracts could be framed in the same legal category. These contracts, as contracts that were shaped by praxis, do not have, with exception of agency contract, a legal framework in Portugal and Spain. It has been discussed in literature if agency contract legal framework can be applied, by analogy, to the contracts that fit in the legal category of distribution contracts. This paper aims at analyzing the legal framework of contracts of distribution in these legal systems, with the purpose to discuss the analogical application of the agency contract to these contracts.