Waiver of non-competition clause by franchisee
On 22 June 2015, the Interim Relief Judge of the District Court of The Hague (ECLI:NL:RBDHA:2015:7353) penalized a franchisee because he brought a second interim injunction about the same proceedings, namely whether the non-compete clause was valid.
A franchisor had terminated the franchise agreement prematurely because the franchisee would disrupt the cooperation. The franchisee had also demanded compliance with the franchise agreement in preliminary relief proceedings. In addition, the franchisee had also claimed that it could continue to serve its existing relations and demanded that the franchisor be prohibited from having direct or indirect contact with the relations of the franchisee. The franchisor pointed to the non-competition clause contractually agreed with the franchisee. The franchisee then argued that it could not invoke the post-non-compete clause because it had already transferred the rights under the franchise agreement to another party. The preliminary relief judge had rejected the franchisee’s claim in that interlocutory proceedings, partly because the case was not suitable to be assessed in interlocutory proceedings.
In the present proceedings, the franchisee is claiming suspension and cancellation of the post-non-compete clause. In the present proceedings, the preliminary relief judge rules that the franchisee has not made it sufficiently plausible that there are new facts and/or circumstances that do make it possible to reach a judgment in this matter in preliminary relief proceedings. The conclusion is that the present claims of the franchisee in interlocutory proceedings are also not allowable.
The franchisor’s legal costs must be fully reimbursed by the franchisee due to abuse of procedural law and are estimated at € 4,750, of which € 4,137 in lawyer’s salary, plus 6% office costs and VAT, and € 613 in court fees.
This judgment illustrates that abuse of procedural law can be punished with a hefty cost order by way of compensation for damage to the other party for having to litigate needlessly.
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+ – Current state of affairs Franchise Act – dated March 27, 2020 – mr. AW Dolphin
The legislative process regarding the Franchise Act continues despite everything.
Rent reduction and corona crisis – dated 25 March 2020 – mr. Th.R. Ludwig
In this turbulent time for franchisors and franchisees, many are faced with ongoing obligations that have become problematic.
Franchise agreements and the corona crisis – dated March 20, 2020 – mr. AW Dolphin
A time of draconian measures with far-reaching consequences. There is a lot of legal uncertainty, also in franchise relationships.
Recommendations by the franchisor in general terms are permitted – dated March 6, 2020 – mr. AW Dolphin
The boundary between praise in general terms on the one hand and culpable deception and misrepresentation on the other remains a difficult issue.
Article De Nationale Franchise Gids – Know-how decisive for scope of application Franchise Act – dated 5 March 2020 – mr. RCWL Albers
It will have escaped the attention of few in the sector that on 10 February 2010 the legislative proposal for the Franchise Act was submitted to the House of Representatives.
Column Franchise+ – A conflict can be prevented, just communicate well – February 2020 – mr. AW Dolphin
Formula changes are a fascinating topic. It is often the subject of conflicts, but those conflicts can be avoided.