Acquisition fraud vs. error in franchise forecasting
Who has to prove that the franchisor’s forecast is unsound? In principle, this is the franchisee. If the franchisee invokes the Acquisition Fraud Act, the burden of proof may be reversed. In that case, the franchisor, and therefore not the franchisee, will have to prove that the prognosis issued was not misleading.
The Amsterdam Court of Appeal ruled that the reversal of the burden of proof under the Acquisition Fraude Act does not also apply to an appeal by the franchisee on the basis of error. See Amsterdam Court of Appeal 16 January 2018, ECLI:NL:GHAMS:2018:123. In the first instance, the franchisee had only invoked error to no avail. See District Court of Noord-Holland 27 February 2017, ECLI:NL:RBNHO:2017:1590.
If there is a mistake, there does not have to be an unlawful act on the part of the franchisor. In error, the franchisee claims that he entered into the franchise agreement in the event of a misrepresentation. It is important that the franchisor is involved in the occurrence of that mistake or misunderstanding. A wrongful act occurs when an error has been committed. Acting by the franchisor in violation of the Acquisition Fraud Act constitutes an unlawful act.
A franchisee who believes that the prognosis presented is unsound, should think carefully about how to approach this.
mr. AW Dolphijn – franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to dolphijn@ludwigvandam.nl .
Other messages
Interests Association of Franchisees of the Netherlands (BVFN) is in further consultation with the Minister
On April 16, 2014, the previously announced meeting between the Belangen Vereniging Franchisenemers Nederland (BVFN) and the Ministry of Economic Affairs took place.
Exoneration of duty of care with the franchisor’s prognosis
In a judgment of the Overijssel court of 9 April 2014, the interesting question arose whether a collaboration should be qualified as a franchise.
Non-competition clause is lost in summary proceedings
Recently, the preliminary relief judge in Rotterdam ruled that a franchisee was not bound by the non-competition clause included in the franchise agreement.
Advance on compensation after an unsound prognosis
In a beautifully substantiated summary judgment of the Northern Netherlands Court of 9 April 2014, the question was whether an advance should be paid for the damage assessment procedure.
Collection point requires shopping destination
In my supermarket newsletter of July 11, 2013, I already predicted that the establishment of collection points for goods ordered via the internet would set the judicial pens in motion.
Developments and sales via the internet.
Developments and sales via the internet.