Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.
Form and Formalities
Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.
Important Provisions
For all parties:
- a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
- b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- d) Product samples.
Incoterms
In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:
For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)
Product Liability
According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).
Intellectual Property
Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.
Termination
La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.
Applicable Law and Jurisdiction
The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.
The author of this post is Tomás García Navarro.