Bonuses that are not in the franchise agreement
Bonuses that are not in the franchise agreement
The Court of Appeal in The Hague 31 March 2015
(ECLI:NL:GHDHA:2015:1139) a dispute was submitted between a franchisee and franchisor regarding the settlement after termination of the franchise agreement with regard to bonuses.
The franchisor and the franchisee entered into a settlement agreement to terminate the franchise agreement. However, it has been determined that the parties are still in dispute about, among other things, bonuses paid to the franchisee. Among other things, that dispute was submitted to the court, of which the present dispute concerns the judgment on appeal.
It concerned the following: The franchisor received bonuses from providers, in particular with regard to turnovers made by the franchisee. The franchisee states that it is entitled to those bonuses and therefore that these bonuses must be paid to it.
The Court of Appeal ruled that the right to the aforementioned bonuses was not explicitly stipulated in the franchise agreement. However, the franchise agreement does provide that the franchisor may set off against such bonuses what the franchisee owes the franchisor under the franchise agreements. According to the Court of Appeal, that provision therefore assumes that there are bonuses that are received by the franchisor but accrue to the franchisee. The franchise agreement should be interpreted as meaning, or at least supplemented by application of Section 6:248 of the Dutch Civil Code, that the bonuses in question granted and received by the providers to the franchisor should be paid to the franchisee.
This judgment once again shows the need for a careful and well-thought-out franchise agreement. If and insofar as the franchisor had wanted to exclude that the franchisee would have any right to a bonus from a provider accruing to the franchisor, it would have done well to stipulate this explicitly.
Mr AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl
Other messages
Signing a Franchise Agreement in the Digital Age – Mr. K. Bastiaans – dated December 14, 2020
Within today's society, under the guise of 'the new normal', digitization is increasing. The court will discuss in more detail the manner in which an agreement is accepted and the consequences.
The sale of tobacco at supermarkets will be banned in 2024. What are the constraints and opportunities for the supermarket business? – mr. C. Damen – dated December 8, 2020
To promote and discourage smoking cessation, the sale of tobacco in supermarkets will be banned in 2024.
Franchise Act will take effect on January 1, 2021 – mr. AW Dolphijn – dated December 3, 2020
The Franchise Act was already adopted on July 1, 2020, but it has now also been established by Royal Decree that the Franchise Act will enter into force on January 1, 2021.
Supermarket newsletter -29-
Supermarket newsletter -29-
Article Franchiseplus: “Divide the pain” – mr. Th.R. Ludwig – dated December 1, 2020
The corona crisis has brought many franchisors and franchisees into ...
Article De Nationale Franchise Gids: “Settlement problems with franchisee who is a general partnership” – mr. JAJ Devilee – dated November 30, 2020
In a recent dispute, two ex-spouses faced each other in an appeal procedure regarding the question whether the ex-wife forfeited penalty payments against the private company.