No valid appeal to non-compete clause in franchising

On 28 February 2017, ECLI:NL:RBGEL:2017:1469, the provisional relief judge of the District Court of Gelderland ruled on whether a franchisee could be bound by a non-compete clause. 

The preliminary relief judge ruled that the franchisor could not invoke the non-compete clause in the franchise agreement, given the circumstances of the case. The issue was that the retail premises rented from the franchisor had to make way for housing. In anticipation of new business premises to be rented from the franchisor, the franchisee (temporarily) operated a business under his own name. It was uncertain whether the franchisor would still be able to offer (suitable) business premises to continue the collaboration. In view of this uncertain situation, the interest of the franchisee in keeping his new store open outweighs the interest of the franchisor in the opinion of the preliminary relief judge. 

If during or after the end of a franchise agreement there is uncertainty about the continuation of the cooperation, this could possibly (also, or more specifically) be assessed as an unforeseen circumstance (ex Article 6:258 of the Dutch Civil Code). To put an end to the uncertain situation, both parties could also (together) energetically turn to the (provisional) judge to come to an adjustment and/or interpretation of the existing agreements. A conflict situation could then perhaps be avoided.

mr. AW Dolphijn – Franchise lawyer

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