Court of Cassation: no recourse to business procurers. The illegitimate use in lieu of agency agreements is unlawful

With its judgments No. 1856 of 1 February 2016 and No. 1974 of 2 February 2016, the Court of Cassation has ruled on the existing distinction between agents and business procurers. In particular, the Court of Cassation has stated that the distinguishing features of an agency agreement are the continuity and stability of the activity carried out by the agent who, within a certain territory, promotes the entering into of agreements on the principal’s behalf, having an independent and ongoing professional collaboration with the latter, following the instructions received from the principal. Instead, an agreement with a business procurer becomes a concrete reality in the carrying out of a totally occasional activity, to the extent that the business procurer’s services have a limited duration in time and exclusively depend on his/her initiative, also being sporadic, since it is limited to specific and certain businesses. By corroborating the theory which had always been held by Fondazione Enasarco, the Court of Cassation has thus confirmed a firm principle by now and already shared by many precedents of the Court of Cassation (thus Cass. No. 19828 of 28 August 2013, Cass. No. 13629 of 26 June 2005).