Commercial contracts: sale, agency, distribution and senior management

A commercial contract is the agreement by which business owners (or a company and an executive) organise commercial acts. It is governed by the Código de Comercio and by special laws, based on the autonomy of the will of the parties (article 1255 of the Civil Code).

The 4 most frequent ones in business traffic are: the commercial sale, the agency contract, the distribution contract and the senior management contract.

Each one has its own regulation (or is atypical, like distribution) and its distinct critical clauses. Managora prepares each template adapted to your transaction: you can see the scope and the updated price in the commercial sale, commercial agency, distribution and senior management files.

Article 325 of the Código de Comercio considers commercial the sale of movable goods to resell them (in the same form or a different one) with the intention of profiting from the resale. Purchases for personal consumption and sales made by farmers or ranchers of their crops are excluded, among others (article 326).

The great difference with the civil sale is the claim periods for defects, which are much shorter: 4 days for apparent flaws or defects when the merchandise is delivered packaged (article 336) and 30 days from delivery for internal flaws (article 342).

Clauses that must not be missing: object and quantity, price and payment method, deadline and place of delivery, transfer of risk, claim periods for defects, retention of title until payment, penalties for delay, and applicable law and jurisdiction. Managora drafts the commercial sale contract tailored to the transaction (price in the file).

In the agency contract (Ley 12/1992) the agent, an independent business owner, promotes or concludes transactions on behalf of the business owner in a continuous and stable manner in exchange for remuneration, without assuming the risk of the transactions (unless there is a guarantee agreement under article 19). It does not require a written form for its validity, but either party can demand a signed document from the other (article 22).

Upon termination, the agent may have the right to client compensation (article 28) if they brought in new clients or increased transactions and that activity continues to produce advantages for the business owner. The amount cannot exceed the annual average of the remunerations received in the last 5 years (or during the entire duration, if it was shorter). The action prescribes in 1 year from the extinction (article 31).

Essential clauses: area and sector, exclusivity, commissions, duration, notice of termination (article 25: 1 month per year of validity, with a maximum of 6), post-contractual non-competition agreement (articles 20 and 21: maximum 2 years, in writing) and compensation for damages under article 29. Managora drafts the commercial agency contract (price in the file).

In distribution, the distributor firmly buys the products from the supplier to resell them in their own name and on their own behalf, assuming the risk. It is an atypical contract: there is no specific Spanish law that regulates it, so it is governed by what is agreed, by the Código de Comercio on a supplementary basis and by the case law of the Supreme Court.

In exclusive distribution the supplier reserves a territory for a single distributor. In selective distribution the supplier chooses the distributors according to objective quality criteria (common in luxury, cosmetics or technology). In both cases European competition rules apply: Regulation (EU) 2022/720 on the exemption of vertical agreements sets a safe framework when neither party exceeds a 30% market share.

Key clauses: territory and type of exclusivity, minimum purchase objectives, pricing policy (it is not possible to impose a fixed resale price, but recommended or maximum prices are allowed), online sales, duration and notice period, stock management upon termination and non-competition. Client compensation is not automatic: the courts can apply Ley 12/1992 by analogy depending on the specific case. Managora drafts the distribution contract (price in the file).

The senior management contract (RD 1382/1985) regulates the special employment relationship of personnel who exercise powers inherent to the ownership of the company (general manager, CEO, CFO, COO), with autonomy and full responsibility, only limited by the governing body. It is based on the mutual trust of the parties. It must not be confused with the administrator or director (commercial relationship) nor with a middle manager (common employment relationship).

It must be formalised in writing, in duplicate (article 4). It allows a probationary period of up to 9 months if the duration is indefinite (article 5). The duration is what the parties agree; in the absence of an agreement, it is understood to be indefinite (article 6).

Extinction (article 11): by withdrawal of the business owner, with a minimum notice of 3 months and compensation, in the absence of an agreement, of 7 days of salary per year with a cap of 6 monthly payments; if the dismissal is declared unfair, 20 days of salary per year with a cap of 12 monthly payments. The executive can resign with a notice of 3 months (article 10).

Common clauses: fixed and variable remuneration (bonus), golden parachute or agreed compensation, exclusivity and full dedication, post-contractual non-competition agreement (article 8: maximum 2 years, with financial compensation), confidentiality and notice periods. Managora drafts the senior management contract (price in the file).

Regardless of the type, every commercial contract must clearly identify the parties and establish the object, the price or remuneration, the duration and the notice period, the causes for termination, confidentiality, data protection and the applicable law and jurisdiction. A poorly drafted contract is the most frequent cause of litigation and unexpected compensation upon termination.

As of 17 July 2026, the reference regulations remain in force: Ley 12/1992 (agency), RD 1382/1985 (senior management) and the Código de Comercio of 1885 (sale). Distribution continues to be an atypical contract. For distribution, Regulation (EU) 2022/720 also applies, valid until 31 May 2034, which is key for exclusivity, pricing and online sales clauses.

Managora drafts and reviews any of these contracts adapted to your company and delivers it ready to sign. You can see the updated price in the file of each contract.