ISSN 3103-7305 • International English Edition
Enterprise & Self-Employment Law
Diamond Open Access
Vol. 1, Issue 3 (2026) • Art. 6509 • pp. 1–8
Breach of the Prohibition of Del Credere Clauses in Commercial Agency Contracts
Abstract
The Italian Court of Cassation, in order no. 1226 of 2026, clarifies the mandatory prohibition of del credere arrangements in commercial agency contracts pursuant to Article 1746 of the Italian Civil Code. The Court declares void for unlawful purpose under Article 1344 any contractual scheme forcing the commercial agent to purchase goods prior to reselling them to customers, thereby surreptitiously shifting the third-party insolvency risk onto the intermediary. Furthermore, the decision reaffirms the parties' freedom to structure post-contractual non-compete covenants under Article 1751-bis, holding that the remuneration requirement remains default rather than mandatory.
Key Legal Takeaways
- Mandatory prohibition: Article 1746 of the Italian Civil Code prohibits any agreement placing liability upon a commercial agent for a third-party customer's default outside the strictly defined and exceptional statutory conditions.
- Evasion of mandatory law under Article 1344 Civil Code: Compelling the agent to purchase goods forcibly or transferring title to merchandise in lieu of accrued commissions constitutes a generalized transfer of customer insolvency risk that is void ab initio .
- Ineffectiveness of compensatory adjustments: Granting higher commission rates or allowing the agent to dispose freely of unpaid merchandise cannot cure the unlawful distortion of the typical legal cause of commercial agency.
- Post-contractual non-compete covenant: The natural remuneration requirement attached to the post-contractual indemnity under Article 1751-bis of the Civil Code is dispositive as to both its existence ( an ) and its payment mechanics ( quomodo ), permitting advance instalments during the life of the agency relationship.
Suggested Scholarly Citation & Original Reference
International / OSCOLA Citation: Federico Palumbo, ‘Breach of the Prohibition of Del Credere Clauses in Commercial Agency Contracts’ (2026) 1(3) Metodo Giuridico (ISSN 3103-7305) Art 6509, 1–8 <https://www.metodogiuridico.it/2026/11/06/contratto-agenzia-cessione-merci-star-del-credere-cassazione-1226-2026/en/>
Original Italian Title: Violazione dello star del credere nel contratto di agenzia — License: Creative Commons CC BY-NC-ND 4.0.
