The supplier prescribed by the franchisor is not performing? What now?
The Court of Appeal of ‘s-Hertogenbosch ruled on 20 February 2018, ECLI:NL:GHSHE:2018:727, on the question of who must prove that the franchisee was misled when entering into the franchise agreement.
Under the franchise agreement, the franchisee must purchase exclusively from suppliers specified by the franchisor. The franchisee states that the franchisor already had problems with two prescribed suppliers at the time, but did not communicate this to the franchisee when the franchise contract was signed. The franchisee invokes fraud and error and nullifies the concluded franchise agreement on those grounds. The franchisor disputes the alleged problems with the prescribed suppliers. The Court ruled that if the franchisor indeed had problems with the exclusive suppliers, the franchisor should have communicated this to the person who was about to become a franchisee.
The franchisee believes that the burden of proof regarding the problems with the prescribed suppliers lies with the franchisor. The Court of Appeal ruled that the franchisee invoked a lack of will and stated that there were grounds to nullify the franchise agreement. Based on the main rule, this entails that he must prove the facts on which he is based, which have been disputed by the franchisor with reasons. The franchisee therefore has the burden of proof.
It is not inconceivable that the franchisee might have had a different position of proof if the Acquisition Fraude Act had been invoked. After all, there is an explicit possibility to reverse the burden of proof if there is a sufficient suspicion of deception.
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Go to dolphijn@ludwigvandam.nl .
![232court-min](https://www.ludwigvandam.nl/wp-content/uploads/2020/12/232court-min.jpg)
Other messages
Statutory commercial interest in the franchise relationship
In daily practice, payment arrears often give rise to legal disputes.
Silent extension
Many franchise agreements contain provisions governing the termination and possible continuation of the existing franchise agreement.
Abuse of bankruptcy law
The right must be used for the purpose for which it was written.
Transfer of the Franchisor’s Business: A Follow-up
In previous contributions in this section, aspects of the transfer of the company have already been discussed
Market and market share
Some notable rulings have recently been made in the field of franchising and competition law
Freedom of contract in franchising
The post-contractual non-compete clause in the franchise agreement is perhaps the most discussed clause in franchising.