The right to terminate an agency agreement under Israeli law
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The right to terminate an agency agreement under Israeli law

Doron Afik, Esq.
July 23, 2014
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Can a distributor terminate an agency agreement even though it is not breached by the agent? Is the agent entitled to compensation for long-standing investment in the establishment of the agency?
An agency agreement is an agreement between a distributor and an intermediary (whether an exclusive agreement or a non-exclusive agreement) according to which the distributor is the one who purchases the products from the manufacturer (in a similar manner an agency agreement may be executed directly between the manufacturer and the agent) and carries the risk of purchasing the products. The agent acts to conclude agreements with the customers, which are signed directly between the customers and the distributor or the manufacturer (through the agent's mediation, and the agent is sometimes even authorized to execute the agreements and to bind the manufacturer or distributor) and the agent's role is limited to acting as the middleman. While the correct formulation of the agreement will ensure that the risk associated with the importation of products (in the case of a distributor-agent agreement) or production (in the case of a manufacturer-agent agreement) does not affect the agent, a proper agent will invest considerable resources in promoting the products. The drafting of agency agreements, especially on the international level, requires the extensive experience of a lawyer specializing in this field because of the sensitivity of many issues - one of them is the term of the agreement and the right to terminate it by either side.
In the "Haim Levy" Court case, a comprehensive holding by the Honorable Judge Winograd of the Jerusalem District Court, the case was that of a car vehicle agency in Israel that was terminated by the distributor. The agency acted for decades without any agreement until an agency agreement was executed and set a defined term of 10 years. At the end of this period negotiations began to renew the agreement but at some point during negotiations the distributor terminated the agreement. The agent contended that the distributor had no right to terminate the agreement because the intention of the parties was that the agreement would not be limited in time.
The Court repeated the caselaw that an agency agreement which is not for a fixed period may be unilaterally terminated by either party subject to reasonable notice. The reasonableness of the required prior notice will be examined under the circumstances. This presumption can be contradicted by proof that the agency agreement established specific cases which are the exclusive cases where the agreement can be terminated and here too a careful draftingof the agreement is required by a lawyer specializing in the field.
In the event of termination of an agency agreement, the agent is not entitled to compensation other than for a period of prior notice of the termination of the agency in a manner that will enable the agent to enjoy the fruits of its investment. The length of the advance notice period depends on circumstances, which a few years ago were anchored in Israeli law under the Agency Contract (Commercial Agent and Supplier) Law, 2012, which set minimum periods for prior notice. Case law teaches that unless the agent can show that the product is identified with it and not with the manufacturer, the agent does not have rights to the reputation of the product and therefore is not entitled to compensation for goodwill built for the manufacturer in the market.
As a lawyer practicing international agency agreements for many years, I would like to clarify that especially in an international agreement (but also in an agreement that applies only in Israel) when executing an agency agreement it is vital to ascertain the law that will apply to the agency and what set of rules apply in the country of destination, which rules may apply even when the agreement attempts to set otherwise (sometimes, as is the case in Israel, some laws will apply notwithstanding the language of the contract). It is also vital to ensure a proper and appropriate mechanism for conflict resolution, which in many cases may even assist to avoid such conflicts in the first place. Proper drafting will ensure the rights of both sides and the legal certainty and will spare unnecessary conflicts in the future.