The commissary agreement is a contractual clause that the parties to a contract expressly stipulate and allows said agreement to be automatically resolved without the need for judicial or extrajudicial process. This, if the party obliged to pay the price does not comply with its obligation.
That is, through this clause, the seller or creditor can act and ensure the repayment of the debt without having to initiate a claim before the Judicial Power.
This commissary agreement is usually inserted or is usually associated with contracts of sale, whether of movable or immovable property, and with real security rights, as is the case of the mortgage.
This pact has its origin in Roman Law, being known as Lex commissoria .
Characteristics of the commissary agreement
The main characteristics of this type of clause are the following:
- This commissary pact in some countries is expressly prohibited, and in others it is annulled in their civil codes, which takes away any usefulness.
- Usually this commissary pact cannot be included in contracts between people because the laws do not allow its automaticity. That is, if one of the parties to the contract does not pay the agreed price, it does not entitle the seller to automatically terminate the contract, but must initiate a claim for the price from the buyer, judicial or extrajudicial.
- The commission agreement gave the seller a full guarantee of performance.
- The current legislative codes are inclined to limit this will of the seller established in the commission agreement and legally oblige to claim the price after termination of the contract. This means that the code gives the buyer more options to pay that price and prevents the seller from appropriating foreign goods, or prevents the seller from appropriating an asset with a higher value than what is owed.
- This pact would generate an abuse of the creditor or seller.
- The main characteristic of this agreement is its conventionality, that is, it would not influence any type of process determined by law, but the simple will of the creditor, which would imply abuse against the debtor.
To better understand this pact reached by the parties in their contract, let’s put a colloquial example:
Example of commission agreement in purchase agreement
- A (the seller) sells real property (a house) to B (the buyer). They agree on a price of 100,000 euros for the house, paid in installments for 100 months, where B must pay A 1,000 euros per month. They agree to enter a commission agreement in this sale contract.
- If one of those months B did not meet the payment of the price stipulated in the purchase agreement, A would have the right to automatically terminate the contract and would have the right to recover his real estate again. This, without prior claim to B.
Example of commissary agreement in real security right
- A (lender) lends money to B to buy an asset (a house). The guarantee that is established for A to ensure the repayment of the amount loaned to B is the same good. That is, it is a mortgage loan. A lends 100,000 euros to B for the house payment and they agree to a monthly payment of 1,000 euros for 100 months. They agree to enter a commissary agreement in this mortgage guarantee contract.
- If one of those months B did not meet the payment of the price stipulated in the guarantee contract, A would have the right to automatically terminate the contract of his own free will and the house would become his property. This, without prior claim to B.