Sale of a franchise company due to a non-competition clause: False construction or not?
Franchisees who are unwilling or unable to continue with the franchise company experience whether or not the non-competition clause is valid or not. Continuing without a franchise is then risky. Does the clause apply or not? The outcome of a costly procedure is often uncertain. A solution may then be to sell the company to someone else who will continue the same activities without cooperation with the franchisor. Recently, the Arnhem Court of Appeal (ECLI:NL:GHARL:2018:3128) and the Overijssel District Court (ECLI:NL:RBOVE:2018:3489) ruled on the question of whether that sale should be regarded as a sham construction to evade the non-competition clause.
In the case of a Bruna entrepreneur, violation of the non-competition clause was assumed because after the sale there was still “involvement” with the successor company. In the case of the pellet stove formula JustFire, it was considered that the mere fact that the ex-life partner with whom the ex-franchisee was still in contact, but continued to sell stoves entirely at his own risk and expense, did not mean that there would be a sham construction. In other words, no involvement with the successor company was assumed. That involvement is therefore the assessment criterion.
In the latter case, it was also considered that in a claim for compliance with the non-competition clause, the fact that the franchisor takes the initiative to terminate can also be taken into account. The ex-franchisee of JustFire was faced with a rather abrupt dissolution.
Finally, the Court of Overijssel considers that mediating in the sale of stoves can also be regarded as an agency for the time being. Unlike franchise, agency is an agreement defined by law. Both rules for termination and the non-competition clause apply to this. That clause lapses in the event of irregular termination by the franchisor/principal.
Formula foreign sale of the franchise company is therefore a serious option when the franchise agreement is terminated.
mr. J. Sterk – franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to strong@ludwigvandam.nl
Other messages
Franchise Act passed by the House of Representatives – dated 16 June 2020 – mr. AW Dolphin
The Franchise Act was adopted by the House of Representatives on 16 June 2020.
Sandd franchisees find satisfaction in nullifying Sandd and PostNL merger – dated 12 June 2020
The franchisees of mail delivery company Sandd went to court in November, assisted by Ludwig & Van Dam Advocaten. Court of Rotterdam rules on takeover by PostNL.
Plenary debate dated June 9, 2020 in the Lower House of the Franchise Act – dated June 10, 2020 – mr. AW Dolphin
On 9 June 2020, the legislative proposal for the Franchise Act was discussed in plenary in the House of Representatives. An amendment and a motion have been tabled.
Franchising is “a bottleneck in tackling healthcare fraud” – dated 10 June 2020 – mr. AW Dolphin
According to the various supervisory authorities in the healthcare sector, franchise constructions can be seen as a non-transparent business construction in which the supervision of professional and
Article Franchiseplus: “Franchisors participate in franchisees” – dated June 3, 2020 – mr. AW Dolphin
Franchisors are increasingly participating in the franchisee's business. There are several benefits for both the franchisee and the franchisor.
Article The National Franchise Guide – “Corona discount on rent” – dated June 2, 2020 – mr. AW Dolphin
If a rental property is obliged to be closed due to corona, there may be a right to a rent reduction, according to the Northern Netherlands court.