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F A L L 2 0 1 3
"Cesantía Comercial." The fears of the
Colombian industry seemed to mate-
rialize when the Antioquia´s Superior
Tribunal condemned Icopinturas S.A.
to pay to a distributor the "Cesantía
Comercial,"considering that the latter
had contributed to open new markets for
the products of the former. This sentence
was revoked later by the Supreme Court
of Justice who considered that the agent
was buying the goods for himself with
the intention of reselling them and thus,
he was promoting his own business. This
doctrine was ratified by the Supreme
Court of Justice in the Cacharrería Mun-
dial vs. Jorge Ivan Merisalde
case, which
became a leading case for a line of prec-
edents that was ratified in the Distrimora
Ltda. vs. Shell
case of 1995 and later on,
in the sentences enacted by the Bogota,
Boyacá and Tolima's Superiors Tribunals
as a result of the lawsuits promoted by
several distributors
against Productos
Alimenticios Doria S.A. in 2009.
The "Icopinturas" case caused a
huge uproar in the national Doctrine,
which considered that the Supreme Court
Justice was protecting the interest of
the Colombian Industry and their theory
was oriented to forbid the application
of the Commercial Agency Contract.
As detractors of the "Icopinturas" case,
Professors Jaime Arrubla Paucar and
William Namén Vargas sustained that
the existence of a Distribution Contract
and buying for reselling did not exclude
the existence of a Commercial Agency
Contract considering that the agent was
responsible for publicity and could only
sell in the designated territory and within
the prices fixed by the principals.
In 2010, both professors found
themselves as members of the Supreme
Court of Justice and by 2011, they were
faced with a new case of Commercial
Agency Contract. In October 19, 2011,
the Supreme Court of Justice changed
the precedent line that came from 1980
and condemned Hewlett Packard to pay
his distributor the "Cesantía Comercial"
considering that the Commercial Agency
Contract could co-exist with a Distribu-
tion Contract.
The Commercial Agency
Contract and the U.S.­
Colombia Trade Promotion
On November 22, 2006, the Colombian
and United States of America
governments finished negotiations of the
terms for the Trade Promotion Agreement
(TPA) between both countries. One
of the commitments acquired by the
Colombian Government was to promote
before the Congress, the modification
of the Commerce Code regarding the
Commercial Agency Contract.
The current regulation of the
Commercial Agency Contract is
considered an obstacle for the American
goods producers due to the fact that the
commercial relationships they should
establish to distribute their products
within the Colombian territory, could
be declared as Commercial Agency
Contracts, granting the distributors the
rights of an agent upon the termination of
the contract.
In order to prevent the Commercial
Agency Contract to be a barrier for
the implementation of the TPA, the
Colombian Government committed to
reform the aforementioned contract:
To eliminate the "Cesantía
Commercial" that was mandatory
and could not be excluded by pact
between the parties.
To eliminate the presumption of
exclusivity of territory in order
to allow the existence of several
distributors (Article 1318 CCO).
To modify the criteria used to
calculate the compensation owed to
the agent whenever the contract is
terminated without cause.
The New Commercial Agency
Contract for Goods
On April 29, 2013, the Colombian House
of Representatives, in Plenary Session,
approved the Bill Number 146 of 2012,
which creates the Commercial Agency
Contract for Goods.
This new type of contract has the
following scope, characteristics and
(i) Restricts its application solely to the
promotion, exploitation, fabrication
and distribution of goods and
(ii) Maintains the actual Commercial
Agency Contract to services and other
types of commercial activities that
don't involve goods or software.
(iii) Excludes the applications of the
Articles 1318, 1324, 1325 and 1327
of the CCO. However, the other CCO's
norms continue to be fully applicable.
(iv) Eliminates the existing compensation
consequences for termination of
the contract, transferring this kind
of responsibility to the General
Rules, which are less onerous for the
(v) Prohibits its applications to
the current contracts executed
and performed under the CCO's
Finally, it is important to mention
and clarify that the Bill needs to pass
the next two debates in the Colombian
Senate to become an Act; however,
we consider its approval in its current
version very probable.
1 Based on Article 1324 of the CCO.
2 Zuluaga y Soto S.A., Distrisagi Ltda. and Sierra Pineda
y Cía. S. en C., respectively.
3 This article was submitted for publication on May 28,
2013. As of that date, the Colombian Congress had not
yet approved the final text of the Bill Number 146 of