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
The Supreme Court sets strict requirements for franchise forecasts
A ruling by the Supreme Court on Friday casts a new light on the provision of profit and turnover forecasts to aspiring franchisees.
Infringement of exclusive service area by franchisor in connection with formula change dated February 27, 2017
On 30 January 2017, the provisional relief judge of the District Court of Noord-Holland, ECLI:NL:RBNHO:2017:688 (Intertoys/franchisee), was asked how to deal with the
Forecasts at startup franchise formula
The Amsterdam Court of Appeal ruled on 14 February 2017, ECLI:NL:GHAMS:2017:455 (Tot Straks/franchisee) on the question whether the franchisor had provided an unsatisfactory prognosis and whether the
Mandatory transfer of franchise business to franchisor?
On January 23, 2017, the District Court of Amsterdam, ECLI:NL:RBAMS:2017:412 (CoffeeCompany/Dam Spirit BV) rendered a judgment on the question whether a franchisee upon termination of the cooperation
Transfer customer data to franchisor
In its judgment of 10 January 2017, ECLI:NL:GHAMS:2017:68 (OnlineAccountants.nl), the Amsterdam Court ruled, among other things, on the question of how customer data should be transferred.
Franchise Closing Sale – Who Gets the Sale Proceeds?
The judgment of the District Court of the Northern Netherlands dated 12 October 2016, ECLI:NL:RBNNE:2016:5061 (Administrator/Expert Group and Rabobank), focused on the question whether the franchisor, together with the bank,