Advantage in the event of an illegal supply stop
A dispute was submitted to the Supreme Court in which a franchisor had imposed a delivery stop on a franchisee.
It is not in dispute that the franchisee is entitled to compensation for damage if the franchisor unjustly stopped supply. Does this right to compensation also apply if the franchisee has nevertheless purchased the same goods from another supplier?
– The court ordered the franchisor to pay substantial damages as a result of the unlawful stoppage of supply. The Amsterdam Court of Appeal of 20 January 2015, ECLI:NL:GHAMS:2015:137 ruled that there was no such damage because the franchisee had concluded a replacement agreement on the basis of which the same goods were purchased by the franchisee. The franchisee disagreed and lodged an appeal with the Supreme Court.
In its judgment HR 23 September 2016, ECLI:NL:HR:2016:2180 (Luxembourg/Habitat), it is ruled that the question is of a factual nature and not a legal complaint. AG Wissink had nevertheless written an interesting conclusion.
In the opinion of AG Wissink dated 17 June 2016, ECLI:NL:PHR:2016:903, it is pointed out that the Court of Appeal was right to take advantage of the replacement agreement, because the replacement agreement is the actual situation in which the franchisee after the failure of the franchisor has come to be. The Supreme Court previously ruled that benefit can only be attributed if the damage and the benefit arise from “the same event”. See HR 10 July 2009, ECLI:NL:HR:2009:BI3402 (Vos/TSN) and HR 29 April 2011, ECLI:NL:HR:2011:BP4012 (Van der Heijden/Dexia).
Three weeks after this conclusion by AG Wissink, in a completely different case, the Supreme Court ruled that benefit allocation is only possible if the benefit accrued because the other party had violated standards, and this is reasonable. See HR 8 July 2016, ECLI:NL:HR:2016:1483 (ABB/TenneT). That judgment seems to be in line with the conclusion of the AG of 17 June 2016.
The argument that the franchisor gets away with its default, thanks to the replacement agreement concluded through the efforts of the franchisee, therefore fails.
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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Contribution Mr. AW Dolphijn in Contracting magazine 2018, no. 1: “The unilateral amendment clause in the franchise agreement.”
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Supermarket letter – 22
No Dutch Franchise Code, but legislation on franchising.
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The State Secretary has announced that the Dutch Franchise Code ("NFC") will not be enshrined in law. However, there will be legislation on franchising.