Bonuses that are not in the franchise agreement
Bonuses that are not in the franchise agreement
The Court of Appeal in The Hague 31 March 2015
(ECLI:NL:GHDHA:2015:1139) a dispute was submitted between a franchisee and franchisor regarding the settlement after termination of the franchise agreement with regard to bonuses.
The franchisor and the franchisee entered into a settlement agreement to terminate the franchise agreement. However, it has been determined that the parties are still in dispute about, among other things, bonuses paid to the franchisee. Among other things, that dispute was submitted to the court, of which the present dispute concerns the judgment on appeal.
It concerned the following: The franchisor received bonuses from providers, in particular with regard to turnovers made by the franchisee. The franchisee states that it is entitled to those bonuses and therefore that these bonuses must be paid to it.
The Court of Appeal ruled that the right to the aforementioned bonuses was not explicitly stipulated in the franchise agreement. However, the franchise agreement does provide that the franchisor may set off against such bonuses what the franchisee owes the franchisor under the franchise agreements. According to the Court of Appeal, that provision therefore assumes that there are bonuses that are received by the franchisor but accrue to the franchisee. The franchise agreement should be interpreted as meaning, or at least supplemented by application of Section 6:248 of the Dutch Civil Code, that the bonuses in question granted and received by the providers to the franchisor should be paid to the franchisee.
This judgment once again shows the need for a careful and well-thought-out franchise agreement. If and insofar as the franchisor had wanted to exclude that the franchisee would have any right to a bonus from a provider accruing to the franchisor, it would have done well to stipulate this explicitly.
Mr AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail 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.