Controversies involving sales representatives and companies about the right moment to pay commissions on sales are not rare in Brazil.
The current and legal practice is to pay commissions to sales representatives when the companies receive the invoices´ payment. Sometimes this situation causes dissatisfaction because some sales representatives do not want to wait for the payment to receive their commissions, especially because many of them do not know the legal aspects. Often these controversies are solved by means of a lawsuit.
In April 2013, the Fourth Chamber of the Superior Court of Justice of Brazil, has decided and confirmed in a trial of appeal 1275956/RS that the sales representatives have a legal right for their commissions as soon as the sales are closed with the buyers, but the right to demand the adjusted amount arises only when the invoices relating to such sales are paid by the buyers of the goods, unless agreed upon a different condition in the commercials agreements.
This understanding confirms the application of the Article 32 of the Law 4886/65 which regulates the activities of sales representatives in Brazil. The article says that the sales representatives have commissions´ rights when the payment of the requests or proposals is made. The same article says that the percentage of the commissions must be calculated on the total value of goods and payment must be made until the 15th day of the following month, considering the date of the receipt of invoices.
Luiz Felipe Solomon, Minister of Superior Court, was responsible for the judgment above and affirmed that “at the time that occurs a consensus between buyer and seller about the object in relation the sales contracts the deal was completed, so the sales representatives have rights on percentage intermediation”. In this context, the issue of invoices as well as other internal procedures of the companies belong to the sales and sellers´ responsibility and do not have any relation with the sales representatives.
In another trial reported by the same Minister (REsp 756115/MG), the understanding was in the same sense, meaning the commissions percentage due should be calculated on the price of the goods at the time of the sales being made by the sales representatives and it is not possible to deduct taxes or fees on the commissions percentage.
The sales representatives are entitled to receive commissions for their work with the conclusion of the sales, but it is possible to demand the commissions as soon as the payment for the goods is done, unless some clause in the commercials agreements indicates another condition.
These are some relevant points involving sales representatives and companies that deserve a special attention and focus in the commercials agreements in order to avoid judicial claims.
Even though the Brazilian law is very clear on this subject, corroborated by doctrine and Court´s decisions, it is important to observe that in many cases the sales representatives are unaware of the law. For this reason, it is recommendable to include in the agreements protective clauses according to the law to prevent unnecessary claims and to avoid the payment of the judicial costs, expenses and attorneys´ fees, but, mainly to preserve the commercial relationships.
Valdirene Laginski was associate at Pacheco Neto Sanden Teisseire Law Firm.
