In Italy, for regulating the issue of territorial exclusivity in agency contracts, pursuant to Article 1743 of the Civil Code, titled “Right of Exclusivity,” the following rules apply: “The principal may not simultaneously employ multiple agents in the same territory and for the same line of business, nor may the agent undertake to handle the affairs of multiple competing businesses in the same territory and for the same line of business.” Based on this provision, exclusivity constitutes a natural element of the agency contract, a legally regulated right and obligation in favor of both parties foreseen by the law; on the contrary, for other types of contracts, such as distribution, franchising, or licensing, exclusivity constitutes a right and obligation that must be regulated by a contractual clause.
The Italian Supreme Court, in its decision no. 1251 of January 20, 2026, ruled that “In the present case, these facts would be represented by the alleged violation of the right of exclusivity, but such a right – as already affirmed by the lower Court in accordance with the law – presupposes a clause in such terms, [omissis] since the right and obligation of exclusivity may also be excluded by the contract. Therefore, contrary to the appellant’s argument, it must be reiterated that the right of exclusivity is still of contractual origin and not of legal origin pursuant to Article 1743 of the Civil Code (Cass. order no. 14763/2022).”
This ruling is not satisfactory because, while it is true that exclusivity may be excluded by contract, this right and obligation does not arise from the contract but from the law; specifically, in an agency agreement, if no provision is contained in this regard in the contract, Article 1743 of the Civil Code, as cited above, applies, and therefore the exclusivity remains in effect.
In summary, the parties in agency contracts with a contractual clause can:
- (i) exclude the right and obligation of exclusivity foreseen by Article 1743 of the Civil Code;
- (ii) regulate the right and obligation of exclusivity differently from the provision contained in Article 1743 of the Civil Code, derogating from such provision;
- (iii) do not write anything in the contract concerning the right and obligation of exclusivity, in such a case Article 1743 Civil Code applies as it is above quoted.
Article by VENTURELLO E BOTTARINI, AVVOCATI
