The possibility of actively or not actively recruiting customers outside
Based on the relevant regulations, it is permitted to limit the franchisee’s active solicitation activities to its exclusive territory. In that area, the franchisee can then freely advertise and acquire customers in any other way. In that case, the franchisor should not impose any restrictions on the franchisee in actively acquiring customers within the exclusive territory. It is of course possible that certain advertisements end up outside the exclusive territory of the relevant franchisee, whether or not via the internet.
It follows from the above that when a customer, who is not located in the franchisee’s exclusive territory, turns to this franchisee, the franchisee is free to do business with this customer. This also applies, of course, if such customer contact is established via the internet or a catalogue. In that context, however, a franchisee may be prohibited from actively distributing e-mails outside its exclusive territory. This is what is known as active recruitment. In other words: if there is active sales, the possibilities of a franchisee can be limited. In summary, the above means that if a franchisor allocates an exclusive territory to its franchisee, the franchisee must have considerable freedom in acquiring customers in that territory; the so-called active sale. The franchisor can only impose restrictions if the sales activities take place in the area outside the exclusive territory of the relevant franchisee. Often this will also arise from the protection of other franchisees located in that adjacent area, each with its own exclusive area.
Ludwig & Van Dam franchise attorneys, franchise legal advice
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Ludwig & Van Dam Legal Franchise Statistics 2018
Ludwig & Van Dam attorneys are the only periodic publishers of franchise statistics on franchise disputes based on all published court decisions.
Ludwig & Van Dam in De Nationale Franchisegids 2018
The basis of a franchise relationship is the franchise agreement. This contains a number of conditions that the parties must comply with.
Ludwig & Van Dam Advocaten exhibitor (no. 2) at the franchise fair Onderneem ‘t! dated 19 & 20 April 2018
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Duty of care franchisor in the pre-contractual phase
The District Court of Limburg ruled on 6 April 2017, ECLI:NL:RBLIM:2016:2843, that the franchisor has a duty of care towards the prospective franchisee in the pre-contractual phase.
Franchisee avoids joint and several liability in private
In a judgment of 28 March 2018, ECLI:NL:RBROT:2018:2913, the District Court of Rotterdam ruled on the meaning of the clause in the franchise agreement stipulating that