Purchase obligation and competitive prices
On 9 September 2015, the District Court of the Northern Netherlands (ECLI:NL:RBNNE:2015:4271) rendered a judgment on the question of whether a franchisor charged market prices in the case of an exclusive purchasing obligation.
Franchisees accuse the franchisor of misusing the prescribed purchase obligation because prices were not charged in line with the market. The franchise agreement prescribes that the prices must be in line with the market.
The court concludes that the franchisees have not sufficiently substantiated that the franchisor charged them prices that were not in line with the market. The mere fact that other suppliers had cheaper prices at different times (and usually for a limited number of products) is not sufficient for this. It cannot in any way be deduced from the statements of the franchisees that other suppliers could continuously supply all franchisees at those lower prices, according to the opinion.
Since, according to the court, the franchisees have not provided sufficient evidence to conclude that the franchisor has not supplied at market prices, there is no reason to allow them to provide further evidence. The opening of books requested by the franchisees is therefore also not ordered. Incidentally, the court also notes that the franchisees have not made it sufficiently clear why disclosure could contribute to relevant evidence. After all, the prices charged by the franchisor to the franchisees are known and the possibilities and prices of other providers will not be found in the books of the franchisor.
The claimed liability of the (indirect) directors and/or shareholders of the franchisor are also rejected in line with the foregoing.
Once again it appears that strict requirements are imposed on the substantiation of the statement that there are no market-based prices in the case of exclusive purchasing obligations.
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 The National Franchise Guide – “Corona discount of 50% on the rent” – mr. AW Dolphijn – dated September 15, 2020
Disappointing turnover due to the corona crisis may mean that the rent is halved, even if the rent is partly turnover-related.
Article Franchise+ – “Franchisor uses “derivative formula” (without his knowledge)” – mr. AW Dolphijn – dated September 9, 2020
Many franchisors will not be aware of the fact that they use a "derived formula" as referred to in the Franchise Act.
Article Franchise+ – “Obligations and rights of the starting franchisee” – mr. AW Dolphijn – dd
What should you pay attention to as a starting franchisee, what are your obligations and what are your rights when concluding the franchise agreement?
Article Mr. C. Damen – Three conditions for the right to customer compensation for the agent upon termination of the agency agreement – dated August 26, 2020
In the agency relationship between an agent and a client (the principal), the parties record their cooperation agreements in an agency agreement. When the principal enters into the agency agreement
Article Mr. C. Damen – “When does the obligation to provide proof apply for the submission of the franchise agreement?” dated August 17, 2020
Does the obligation to produce information apply to showing a (franchise) agreement in proceedings if the parties to the proceedings do not have a legal relationship to the (franchise) agreement?
Article Mr. AW Dolphijn – “How do you value a franchise company with a discharge loan?” – dated August 14, 2020
A discharge loan is a proven means of franchisors to find long-term franchisees.