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
Sale of a franchise company, a subject to consider in good time
When entering into the franchise agreement, the fact that and under what conditions is not always considered in good time
Delivery of the rented property at the end of the rental agreement
Article 7:224 of the Dutch Civil Code stipulates that the tenant will leave the rented property at the end of the rental agreement
Dissolution due to deviation from recommended prices: unacceptable under competition law
An important statement was recently made with regard to margin management and ditto pricing policy.
If the rental agreement is terminated by the lessor/franchisor, there may be compensation to be paid to the lessee/franchisee by the lessor/franchisor
Lease agreements relating to medium-sized business premises are frequently terminated
The franchise pre-agreement; the pre-contractual phase
It regularly happens that the franchisor and franchisee enter into a franchise pre-agreement
What is specific franchise mediation and when is mediation an option?
It occurs in the best marriages and also in franchise relationships: a difference of opinion arises.