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
Article De Nationale Franchise Gids: “Increasing protection against recruiting franchisees” – dated 2 April 2019 – mr. AW Dolphin
It is becoming increasingly apparent that recruited franchisees can be protected on the basis of the Acquisition Fraud Act.
The Franchise Association and Franchise Binding – Contracting 2019, No. 1
A contribution on common provisions in franchise agreements that require a franchisee to be a member of a franchisee's association.
Deception in recruiting a franchisee?
A ruling on whether the franchisor had made a misrepresentation when recruiting a franchisee.
Franchisor liable for forecasts from third parties – dated March 6, 2019 – mr. M. Munnik
According to settled case law, a franchisor acts unlawfully towards its franchisee when a franchisor independently conducts research in a careless manner and as a result...
The (hard) franchise agreement and duty of care qualified – WPNR 7226 (2019)
The government intends to include a legal regulation on franchising in the Civil Code to protect the weak position of the franchisee.
The municipality must allow temporary Albert Heijn
On 7 February 2019, the District Court of Noord-Holland ruled on whether the municipality should allow a temporary Albert Heijn