Nice weather as an excuse?
Legal discussions are regularly held about the question of whether disappointing visitor numbers in a (new) shopping center can be blamed on the lessor. Recently some statements have been made in this regard. These statements are important because estimates of visitor numbers may form part of forecasts as made available to the franchisee by the franchisor. The culpability can therefore extend to the franchisor and is therefore not limited to the operator of the shopping centre.
Whether disappointing visitor numbers in a (new) shopping center can be blamed depends very much on the facts and circumstances of the case. In concrete terms, this means that the lessor and/or the franchisor may indeed be liable if the figures presented turned out to be unrealistic afterwards.
An independent research obligation of the prospective tenant/franchisee is of course important in this respect. As a professional counterparty, the necessary may be expected of him in this regard. However, if a shopping center provides very clear figures that are also decisive for entering into the final rental agreement, then this can indeed be decisive. It is also important to check to what extent the data of the shopping center has been taken into account in the final forecast and to what extent these data are decisive for any deviations found. In this context, a professional attitude from the franchisor may be expected. Generalities such as economic malaise or a buyers’ strike because of the warm weather are therefore not valid.
Ludwig & Van Dam franchise attorneys, franchise legal advice
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Supermarket letter – 19
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