Supermarket competed by its own landlord
On 15 July 2014, the Court of Noord-Holland in interlocutory proceedings (ECLI:NL:RBNHO:2014:9635) made an interesting ruling about the competition of a supermarket by its own lessor.
At issue was the situation in which the lessor (namely Deen) leased a supermarket business space to Jumbo Supermarkets, which operated a Jumbo supermarket in the leased property. Deen has also started operating its own Deen supermarket in the immediate vicinity of this business premises.
The preliminary relief judge ruled that the landlord’s competitive actions must in principle be sanctioned and refers to a judgment of the Supreme Court of 17 December, ECLI:NL:HR:2004:AR2768 (Dunnewind-Schuitema), where this was determined. However, because this Danish supermarket was not a real full-service supermarket, as the Jumbo supermarket is, but rather a kind of “AH to go”, there was hardly any real competition. In that specific case, therefore, there was no question of a disturbance in the enjoyment of the rental. However, if there really is competition from the landlord, this can indeed be sanctioned.
It should also be noted that the rental agreement contained a non-compete clause. According to Jumbo, the parties have agreed that Deen would refrain from competing activities. Deen contested that explanation with reasons. According to Deen, it was only the intention that Jumbo would be indemnified against a claim for own use on the part of Deen. Deen points out that a non-compete clause has not been agreed and that Deen, as a supermarket chain, would certainly not include a non-compete clause in the rental agreements with third parties. In the opinion of the preliminary relief judge, Jumbo subsequently made its explanation insufficiently plausible. The appeal on the non-compete clause is therefore rejected.
Good and clear agreements between landlords and tenants about the arrival of competitors in the neighborhood over which the landlord has influence promote the certainty and continuity of successful cooperation.
mr. AW Dolphijn – Franchise lawyer Ludwig & Van Dam Advocaten Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl
Other messages
Column Franchise+ – mr. J. Sterk – “Franchisee does body check better than franchise check”
A gym embarks on a franchise concept that offers “Body Checks” and discounts to (potential) members in collaboration with health insurers.
Seminar Mrs. J. Sterk and M. Munnik – Thursday, November 2, 2017: “Important legal developments for franchisors”
Attorneys Jeroen Sterk and Maaike Munnik of Ludwig & Van Dam Advocaten will update you on the status of and developments surrounding the Dutch Franchise Code and the Acquisition Fraude Act.
Goodwill at end of franchise agreement
In a case before the Amsterdam Court of Appeal on 26 September 2017, ECLI:NL:GHAMS:2017:3900 (Seal & Go), a franchisee claimed compensation for goodwill (ex Article 7:308 of the Dutch Civil Code) after the
Article in Entrance: “Resignation”
Fire an employee who is not performing well? The subdistrict court is strict. If you, as an employer, cannot demonstrate that you have done everything yourself to make the person function better, it will be
Cost price that is too high as a hidden franchise fee
An interlocutory judgment of the District Court of The Hague dated 30 August 2017, ECLI:NL:RBDHA:2017:10597 (Happy Nurse) shows that the court has considered the question whether the
Supermarket letter – 19
Coop liability for damages due to non-performance towards the franchisee