A question that often arises in practice is:
👉 If the agent “brought in” the customer, are they responsible if the customer fails to pay or perform the contract?
📌 Generally, no. An agent is not liable for performance of a contract between the principal and a customer. The agent’s role is limited to acting as an intermediary in its conclusion.
But…
⚖️ The Civil Code allows the parties to agree that the agent assumes responsibility for the customer’s performance, known as del credere liability. Certain conditions must be met:
1️⃣ the provision must be included in an agency agreement concluded in writing;
2️⃣ the agent must be remunerated for assuming the risk, through “del credere commission”.
⚠️ What does the principal gain from such a clause?
🔵 It can demand performance directly from the agent.
👉 Importantly, this liability is a guarantee: the agent is liable regardless of whether they were at fault for the customer’s non-performance.
Example:
If a customer fails to pay an insurance premium, the insurer acting as principal may demand payment from the agent.
⚠️ This raises a key issue often overlooked in agreements.
👉 The agency agreement should specify precisely which contracts, or contracts with which customers, the agent guarantees. Failure to do so may even invalidate the provision.
📌 Conclusion?
A del credere clause can reduce the principal’s risk of customer non-performance, but:
👉 it entails an additional cost;
👉 it requires very precise drafting.
Otherwise, it creates a further area for dispute rather than protection.
