Mitigation fine of franchise agreement at supermarket
On 22 April 2015, the District Court of East Brabant (ECLI:NL:RBOBR:2015:2333) ruled on a dispute between a franchisee and a franchisor (Emté Franchise BV). about the settlement of a terminated cooperation under the supermarket formula of Emté
The franchisee and franchisor terminated the partnership and entered into a termination agreement. This stipulates that the franchisee will receive an additional amount of € 200,000 from the franchisor. It was agreed that this amount could be set off against outstanding amounts. It has also been stipulated that the party acting in violation of the termination agreement must pay a penalty to the other party of € 100,000 and an amount of € 1,000 for each day that the violation continues.
The franchisor deducts a portion of approximately € 24,000 from the amount to be paid of € 200,000. This amount related to an earlier discussion about an unpaid (part of) an invoice to the franchisee. This had also been discussed when the termination agreement was drawn up and, at the insistence of the franchisee, it was deleted from the termination agreement that the relevant invoice would be deducted from the amount of € 200,000 to be subsequently paid.
The court rules that the franchisee was right to assume that the amount of approximately € 24,000 would not be deducted from the additional payment of € 200,000, despite the remaining general provision in the franchise agreement that settlement could be made with outstanding amounts. At the insistence of the franchisee, the chargeability of the relevant invoice had been removed from the termination agreement. The franchisee’s claim for payment of the amount of approximately € 24,000 plus statutory interest is granted.
The franchisee also claimed payment of the agreed fine, which is said to have risen to approximately € 410,000. The court ruled that the ratio between the damage and the fine is disproportionately large. The court also considers that the franchisor is a more professional party with its own legal department, which has drafted the penalty clause itself. All things considered, the court sees reason to moderate the fine to 20% and therefore to € 82,000 plus the statutory interest.
A contractual penalty may be moderated under special circumstances. It can also be deduced from this ruling that any mitigation of a contractual fine may be considered to the detriment of the franchisor by the fact that the franchisor is a more professional party than the franchisee, with its own legal department, for example.
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
Bankrupt because the franchisor refused to sell the franchise company – dated January 28, 2020 – mr. AW Dolphin
The District Court of The Hague has dealt with a request from a franchisor to declare a franchisee bankrupt.
Prescribed shop fitting – dated January 28, 2020 – mr. AW Dolphin
The Midden-Nederland District Court has ruled on whether a franchisee is obliged to carry the shop fittings prescribed by the franchisor.
Ludwig & Van Dam attorneys summon Sandd and PostNL on behalf of the Sandd franchisees – dated 9 January 2020 – mr. AW Dolphin
The Association of Franchisees of Sandd (VFS) has today summoned Sandd and PostNL before the court in Arnhem. The VFS believes that Sandd and PostNL are letting the franchisees down hard.
Article The National Franchise Guide: “Why joint and several liability, for example, next to private?” – dated 7 January 2020 – mr. AW Dolphin
Franchisees are often asked to co-sign the franchise agreement in addition to their franchise, for example. Sometimes franchisees refuse to do so and the franchise agreement is not signed.
Ludwig & Van Dam Advocaten assists Sandd franchisees: Franchisees Sandd challenge postal monopoly in court – dated 12 November 2019 – mr. AW Dolphin
The Association of Franchisees of Sandd (VFS) is challenging the decision of State Secretary Mona Keijzer to approve the postal merger between PostNL and Sandd before the court in Rotterdam.
Franchisee trapped by non-compete clause? – dated October 21, 2019 – mr. AW Dolphin
The District Court of East Brabant has ruled that a franchisee was still bound by the non-competition clause in the event of premature termination of the franchise agreement.