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
Suspension post non-competition clause in Bruna franchise agreement
On 25 September 2015, the preliminary relief judge of the Utrecht District Court suspended the post-non-compete clause in a Bruna franchise agreement.
Legal qualification of cooperation
Legal qualification of cooperation
Central website (and/or central telephone number), an infringement of an exclusive catchment area?
Several franchise agreements have not properly considered the central acquisition of customers via the Internet, in combination with the geographic exclusive territories of the franchisees.
The forced alternative franchise formula (Kippersluis/Jumbo)
The Den Bosch Court of Appeal ruled on the issue of a franchisee, referred to as Kippersluis, against Super de Boer (now Jumbo).
Franchisees Op=Op lose lawsuit (ECLI:NL:RBNNE:2015:4271)
In many franchise formulas, especially in retail, the franchisor also acts as a wholesaler
Keep your cool with franchise agreement
Keep your cool with franchise agreement