Franchisee avoids joint and several liability in private
In a judgment of 28 March 2018, ECLI:NL:RBROT:2018:2913, the District Court of Rotterdam ruled on the meaning of the clause in the franchise agreement stipulating that it was entered into “acting in private or through the private company Semath management BV, collectively hereinafter referred to as Franchise Taker (FN)”.
The court finds that when the franchise agreement was signed, the person-relatedness was in any case discussed. In view of this, as well as in view of the professional level of both parties, it would have been for the franchisee, if he did not wish to be personally financially responsible in any way, to request an exception to the joint party designation in the financial determination . This applies all the more now that the payment of a sum of money is a divisible obligation.
Although, in view of the above, the franchisee was also a private party to the franchise agreement, this does not mean that there is also joint and several liability. The main legal rule is that everyone is bound for half, unless otherwise agreed. If it wished to assume joint and several liability, it would have been for the franchisor to express this clearly, precisely because this exception to the rule has far-reaching consequences and the franchisor was assisted by a lawyer.
The result is that the franchisee is not personally liable for the debt to the franchisor, but is liable for half. The other half is for Semath management BV, of which the franchisee is the owner.
mr. AW Dolphijn – franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to dolphijn@ludwigvandam.nl .
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