The scope of an exclusive purchase clause in a franchise agreement
The case ruled by the Court of Appeal of ‘s-Hertogenbosch on 21 July 2015 (ECLI:NL:GHSHE:2015:2754) concerned a franchise agreement in which it was stipulated that the franchisee had to purchase at least 90%, under penalty of a fine.
The formula concerns the operation of a wholesale trade in hairdressing supplies. The franchisor argues that the franchisee does not comply with this obligation and takes the franchisee to court. The franchisee has developed (internet) activities under a different trade name. The question is whether these activities fall within the scope of the franchise agreement. The court finds that the franchise agreement itself does not indicate the scope and rules that the franchisor should not have expected that all activities in the field of hairdressing supplies would fall within the scope of the franchise agreement. The lack of clarity about the scope of the exclusive purchase clause is therefore held against the franchisor (contra proferentem).
Once again, this ruling shows the importance of a well-formulated franchise agreement. If there is any ambiguity about the interpretation, the franchise agreement can be interpreted to the detriment of the party that drafted the franchise agreement.
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 Franchise+ – “Recipient’s liability in a franchise context, what exactly is that about?” – mr. K. Bastiaans – dated November 24, 2020
The phenomenon of hirer's liability means that a third party can be held liable for the debts of another under certain conditions.
Franchisor liable for errors made by a franchisee? – mr. AW Dolphijn – dated November 23, 2020
A franchise organization asked the court to declare that the franchisor is not liable if a franchisee has made a serious mistake with a customer.
The Real Intentions of the Parties to a Franchise Agreement – Mr. C. Damen – dated November 23, 2020
What really was the idea of the parties when they concluded a franchise agreement?
Circumventing the prohibition of competition in the franchise agreement – mr. AW Dolphijn – dated November 10, 2020
A non-competition clause in a franchise agreement is often experienced as objectionable by franchisees, especially if the non-competition clause also applies after the franchise agreement has expired.
Article Franchise+ – “How do I get rid of my debts: Also for franchisees and franchisors” – mr. AW Dolphijn – dated October 20, 2020
A reorganization may also be necessary for franchisees and franchisors who are in financial difficulties in order to continue to exist.
Article De Nationale Franchise Gids: “Reinvestment obligation for franchisees has limits” – dated October 13, 2020 – mr. RCWL Albers
In practice, it often happens that franchisors choose to renew their franchise formula and the appropriate image