Franchisee avoids joint and several liability in private
In a judgment of 28 March 2018, ECLI:NL:RBROT:2018:2913, the District Court of Rotterdam ruled on the meaning of the clause in the franchise agreement stipulating that it was entered into “acting in private or through the private company Semath management BV, collectively hereinafter referred to as Franchise Taker (FN)”.
The court finds that when the franchise agreement was signed, the person-relatedness was in any case discussed. In view of this, as well as in view of the professional level of both parties, it would have been for the franchisee, if he did not wish to be personally financially responsible in any way, to request an exception to the joint party designation in the financial determination . This applies all the more now that the payment of a sum of money is a divisible obligation.
Although, in view of the above, the franchisee was also a private party to the franchise agreement, this does not mean that there is also joint and several liability. The main legal rule is that everyone is bound for half, unless otherwise agreed. If it wished to assume joint and several liability, it would have been for the franchisor to express this clearly, precisely because this exception to the rule has far-reaching consequences and the franchisor was assisted by a lawyer.
The result is that the franchisee is not personally liable for the debt to the franchisor, but is liable for half. The other half is for Semath management BV, of which the franchisee is the owner.
mr. AW Dolphijn – franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to dolphijn@ludwigvandam.nl .
Other messages
Delivery stop by franchisor not allowed
On 9 February 2017, the preliminary relief judge of the District Court of Gelderland, ECLI:NL:RBGEL:2017:1372, ruled that a franchisor had not fulfilled its obligation to supply the franchisee
Alex Dolphijn in the Financial Dagblad about the judgment of the Supreme Court regarding Street-One
Franchisors more liable for incorrect forecasts Franchisees can now more easily hold their parent organization liable for incorrect profit and turnover forecasts.
Supermarket letter – 17
Supreme Court: More quickly liable for forecasts
Article in Entrance: “Small print”
“When I do business with a supplier, I never read the fine print. Recently I noticed that there are all kinds of things in it that I actually do not agree with.
Column Franchise+ – mr. Th.R. Ludwig: “Delivery stop by franchisor again not allowed”
Once again, the president in preliminary relief proceedings ruled on the question whether a franchisor's supply stop against the franchisee was permitted, with the franchisee paying a substantial
The manager (employee) who becomes a franchisee – fictitious employment?
On 14 December 2016, the subdistrict court judge of the District Court of Noord-Holland, ECLI:NL:RBNHO:2016:11031 (Employee/Espresso Lounge), considered the situation in which an employee