Legal qualification of cooperation
In a judgment of 15 September 2015 (ECLI:NL:GHAMS:2015:3847), the Amsterdam Court of Appeal clarified that the legal definition of a collaboration is leading for the question of how the collaboration can be legally qualified. In this case, the question was whether there was an agency agreement. This is important because the law contains a number of mandatory statutory provisions for agency agreements, including the manner in which the collaboration is terminated and the agent’s right to a client fee.
The Court of Appeal considers that an agency agreement (according to the definition given in Article 7:428 of the Dutch Civil Code) is an agreement in which one party (the principal) instructs the other party (the commercial agent) to mediate against remuneration for a definite or indefinite period of time in the conclusion of agreements between the principal and clients without being subordinate to the principal. The mere fact that purchase agreements were concluded between the principal and third parties through the involvement of one party (referred to by him as intermediation) does not in itself imply that the agreement between the parties must be regarded as an agency agreement. After all, it is not characteristic of an agency agreement that the contractor mediates in the conclusion of agreements between its client and a third party, but precisely that the contractor is in principle only remunerated (by means of receiving commission) if and insofar as his involvement, agreements between the principal and third parties are concluded.
Regardless of the name of a cooperation between two trading partners, the legal definitions will be the starting point. Designations such as dealer agreement, partner agreement, franchise agreement, affiliation agreement, reseller agreement, cooperation agreement, distribution agreement, etc., legal qualification remains paramount.
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
Contractual dissolution requirements not observed? No legal dissolution of the franchise agreement – dated July 23, 2020 – mr. C. Damen
Can a franchisor terminate the franchise agreement if it has failed to comply with its own contractual requirements?
Legal ban on unilaterally changing opening hours by the franchisor – July 13, 2020 – mr. J. Strong
Legislative proposal of the State Secretary which, in short, means that the shopkeeper may not be bound by unilateral changes to the opening hours during the term of the agreement.
No right to extension of franchise agreement – July 6, 2020 – mr. AW Dolphin
Can a franchisor refuse to renew the franchise agreement if the franchisee does not agree to amended terms of a new franchise agreement?
Amsterdam Court of Appeal restricts franchisor’s appeal to non-competition – dated July 6, 2020 – mr. T. Meijer
On 30 June 20202, the Amsterdam Court of Appeal ruled that a franchisor is not entitled to an (unlimited) appeal to a contractual non-competition clause.
Vacancy lawyer-employee
Ludwig & Van Dam Advocaten is a law firm that specializes entirely in franchise and other partnerships and is the market leader of its kind in the Netherlands.
Qualitaria franchisee put in his shirt – dated July 2, 2020 – mr. JAJ Devilee
The District Court of Zeeland-West-Brabant has rendered a judgment in legal proceedings initiated by a Qualitaria franchisee.