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.
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to dolphijn@ludwigvandam.nl .
Other messages
Article Franchise & Law No. 7 – Franchise agreement as general terms and conditions
Uniformity of the franchise formula and (therefore also) uniformity of the agreements with the franchisees will often be of great importance to the franchisor.
The franchisee’s customer base
If the partnership between a franchisee and a franchisor ends, the question of who will continue to serve the customers may arise.
The healthcare franchisor is not a healthcare provider
The Healthcare Quality, Complaints and Disputes Act (WKKGZ) creates the possibility of government measures being imposed on healthcare institutions to guarantee the required quality of healthcare.
The restructuring within the Intergamma formats from a legal perspective
The legal reality is sometimes more unruly than the factual. The controversial issue at Intergamma is a good example of this.
Open vacancy: lawyer-employee and/or lawyer-trainee!
Due to the departure of one of our colleagues, we are looking for a new lawyer-employee or lawyer-trainee. Interested?
Non-compete clause on the sale of a franchise business
How strict should a non-compete clause be when selling a franchise business to the franchisor? This question was raised in a dispute in which the District Court of Gelderland op