The indemnity formula of the LRCE applies.
The indemnity of Article 2 of the LRCE applies because the present Dealer Agreement was signed on January 9, 2007. Said Article 2 was repealed later, by Law 8629, of November 30, 2007. When the Dealer Agreement was signed, Article 2 was in full effect. Further, the same Law 8626, which repealed Article 2, states that said repeal “… no podrá menoscabarningún derecho adquirido, cuando sea aplicable, derivado de esa legislación o de un contrato o relación comercial establecidos antes de la publicación de esta ley.” Accordingly, the repeal of Article two does not reach the Dealer Agreement because it was entered before the repeal took place and, additionally, because the “commercial relationship” started well before such repeal. The indemnity ofArticle 2 is a vested right of Disexport, constitutionally protected.
Wrongful Termination by GMIS
GMIS did not meet the standards of the Ley de Representates when it terminated the Dealer Agreement with Disexport. The Ley de Representantes establishes only six grounds for termination “without liability for the foreign company.” These are: a) Crimes committed by the representative; b)The representative’s ineptitude or negligence; c) Violation of professional secret; d) “Any other serious fault by the representative, distributor or manufacturer concerning its contractual or duties and obligations with the foreign company.”; e) Lapsing of the contractual term; f) Notice of termination when the contract has no specific term.
GMIS has not alleged any of the grounds insections (a) – (c) or (e) – (f). GMIS alleged certain contractual violations which can only be placed in section (d). Disexport rejects all such allegations as flawed both factually and legally. Regardless of that, GMIS’ allegations also fail because they do not comply –and don’t even attempt to comply- with the standard set by the Ley de Representantes, which requires the level of serious fault “faltagrave”.
Article 7 of the Ley de Representantes states that the distributor’s rights cannot be waived (“Los derechos del representante … por virtud de esta Ley seran irrenunciables.” The Costa Rican Constitutional Court has repeatedly stated that the rights afforded by the Ley de Representantes are constitutional and cannot be curtailed contractually since they have the category of “ordenpúblico”, as the following decisions show:1) Sala Constitucional, Voto 5407 de las 15:50 horas, del 20 de setiembre de 1994; 2) Sala Constitucional, Voto 585 de las 16:33 horas del 1º de febrero de 1995; 3) Sala Constitucional, Voto 2757 de las 15:50 horas del 30 de mayo de 1995. 4) Sala Constitucional, Voto 4021 de las 14:48 del 16 de mayo del 2001. 5) Sala Constitucional, Voto 5925 de las 15:37horas del 3 de mayo del 2001. 6) Sala Constitucional, Voto 10352 de las 14:58 horas del 22 de noviembre del 2000. 7) Sala Constitucional, Voto 2655 de las 15:09 horas del 4 de abril del 2001. Said Article 7 was enacted in November 2007, after the present Dealer Agreement was signed. However, these decisions ranging from 1994 to 2001, clearly show that even before then the law of the land was that therights of the representative, in the Ley de Representantes were unwaiverable, as a matter of “orden público.”
Accordingly, GMIS cannot create - contractually or otherwise- new termination grounds or new termination standards allowing it to repudiate the Dealer Agreement without paying the indemnity mandated by law.
Because GMIS didn’t even allege, let alone attempt to prove, thatDisexport committed “serious fault” as required by Article 5 of the Ley de Representantes, its termination of the Dealer Agreement should, as a matter of Costa Rican law, be considered wrongful.
Violations of the Ley de Representantes de Casas Extranjeras
Article 4 of the Ley de Representantes determines that following are “Just causes for the termination of the contract of representation,...
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