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
![](https://ludwigvandam.megaconcept.nl/wp-content/uploads/2020/12/232court-min-400x222.jpg)
Other messages
Mitigation fine of franchise agreement at supermarket
On 22 April 2015, the East Brabant District Court ruled on a dispute between a franchisee and a franchisor (Emté Franchise BV).
Arbitration clause applicable to franchise agreement? Maybe not
An arbitration clause is occasionally found in franchise agreements.
(Directors’ and shareholders’) liability in the event of transfer or phasing out the franchise formula
(Directors' and shareholders') liability in the event of transfer or phasing out the franchise formula
Directors’ liability in the event of an incorrect forecast
On 4 February 2015, the Rotterdam District Court rendered a judgment on, among other things, the question of whether the director of a selling legal entity was liable.
C1000 loses appeal for inspection of C1000 deal
C1000 loses appeal for inspection of C1000 deal
Supermarket letter – 9
The C1000 Association loses appeal for inspection of the C1000 deal