Recognize qualitative obligations with a business premises franchisee in a timely manner
Court of Haarlem
The court in ‘s-Hertogenbosch was recently confronted with the following case against a municipality. At some point, the claimant (buyer) purchased a business premises in which a supermarket was operated until shortly before the date of delivery. This supermarket has moved to a larger business premises.
A qualitative obligation has been agreed for the seller, which, in short, means that the buyer may not use the purchased business premises to sell foodstuffs. A qualitative obligation has been agreed for the municipality, which – in short – means that the buyer may not use the purchased business premises for retail, unless it concerns the trade in musical instruments and electronics.
The buyer has ceased its business activities at any time and wishes to be released from the aforementioned qualitative obligations. In a previous judgment, the court in ‘s-Hertogenbosch ruled that the buyer was not (any longer) bound by the qualitative obligation towards the seller. In the present proceedings, the buyer wishes a declaratory judgment that the qualitative obligation towards the municipality has been dissolved. For example, the obligation would be in conflict with the zoning plan of the municipality itself (retail trade) and the obligation would have the consequence that competition is unlawfully distorted.
According to the court, a court can only grant such a claim for dissolution if at least ten years have passed since the conclusion of the agreement and continuing the obligations unchanged is contrary to the public interest. There must also no longer be a reasonable interest for the other party and it must not be plausible that this interest will (ever) return.
Although it has been established that the obligation results in acts contrary to the zoning plan, this does not mean that the court assumes that there is a conflict with the public interest. The fact that competition would be unlawfully distorted is not substantiated by the buyer (plaintiff). The court is also of the opinion that the municipality does indeed have a reasonable interest in enforcing the qualitative obligation, so that the claim is rejected.
The above shows all the more how (heavy) qualitative obligations can weigh on a party, even a long time after the agreement containing the obligation has been signed. Now that such obligations occur frequently, including in franchise relationships, it is therefore of the utmost importance to recognize such obligations at an early stage (read: before signing the agreement in question) and – where necessary – to identify what the consequences may be of the obligations.
Mr JH Kolenbrander – Franchise attorney
Ludwig & Van Dam Franchise attorneys, franchise legal advice Would you like to respond? Mail to info@ludwigvandam.nl
Other messages
Those who are orienting themselves as a candidate franchisee can contact the association of franchisees, the BVFN.
Those who are orienting themselves as a candidate franchisee can contact the association of franchisees, the BVFN.
mr. Strong litigates for C1000 entrepreneur with wrong prognosis
mr. Strong litigates for C1000 entrepreneur with wrong prognosis
Newsletter – The National Franchise Guide: Hospitality sector: new times, new franchise formulas?
According to data published in March 2015 by Statistics Netherlands in the Horeca Quarterly Monitor
Continue to serve (existing) customers after termination of the franchise relationship
Continue to serve (existing) customers after termination of the franchise relationship
Franchisee appeals in vain to incorrect prognosis
Franchisee appeals in vain to incorrect prognosis
Economic headwinds and duty of care: sometimes a difficult relationship
The trade press, as well as the more general media, are full of it: the retail trade is under heavy pressure