作者

Dr. Benedikt Rohrßen

合伙人

Read More
Grégoire Toulouse

Grégoire Toulouse

合伙人

Read More
作者

Dr. Benedikt Rohrßen

合伙人

Read More
Grégoire Toulouse

Grégoire Toulouse

合伙人

Read More

2021年7月28日

Franchise & distribution - July 2021 – 2 / 8 观点

Germany - Franchise and Distribution newsletter #26

  • Briefing

The Franchisor’s Disclosure Obligation

Germany has quite elaborate case law on franchising, even though it does not have specific franchise laws – unlike e.g. Belgium, Italy, Latvia, Lithuania, Romania, Sweden and Spain. Such case law is based on the general rules on contracts, including the general requirement to always act in good faith. It includes rules about the franchisor’s disclosure obligation, i.e. on the necessity of providing information to the future franchisee before the conclusion of contract.

There is extensive case law concerning which information to provide pre-contractually, based especially on said good faith principle. Both the franchisees and the franchisors are obliged to disclose to the other party the circumstances which may affect the purpose of the contract.

Such circumstances to be disclosed include the profitability of the franchise system / the achievable turnover on the basis of generally applicable facts (reconfirmed e.g. still quite recently by the Hamburg Regional Court, Case No. 334 O 14/18). Reason given is that the profitability of the system is of particular importance to the franchisee to decide about whether entering into the franchise contract. The franchisee must rely on the accuracy of the information provided; he is generally dependent on the franchisor's pre-contractual information to be able to form a picture of the future viability and development opportunities of the franchise system.

Therefore, franchisors shall exercise increased and special care in the presentation and utilization of data to make the economic possibilities of the franchisee predictable. The facts and figures communicated must not be "glossed over" by the franchisor in any way. To comply with German franchise laws, the information provided must be 1. correct in content, 2. up-to-date and 3. clear / not misleading (cf. Higher Regional Court of Düsseldorf, Case No. I-22 U 62/13).

What, however, a franchisor does not need have to inform without being asked about are circumstances which do not concern the performance of the franchise contract (constant case law, see e.g. Higher Regional Court of Munich, Case No. 8 U 2207/87). Accordingly, in the most recent case decided now in June 2021, the franchisor did not have to disclose that the franchisor had to file for insolvency in the past, more than five or almost ten years ago – concretely concerning the German fast food franchise chain “Wienerwald”, specializing in chicken. In the concrete case, the court decided that it was “not recognizable that and how the distant, overcome insolvency of the franchisor – especially with an established brand such as "Wienerwald" – could impair the implementation of the business of the franchisees in 2012. It was therefore the responsibility of the plaintiff to inform himself about the previous history of Wienerwald. This would also have been easily possible for him via the Internet. Moreover, the plaintiff’s contrary view would, as a practical result, mean that business reorganizations could hardly be carried out successfully any more.”

Practical advice:

  • Franchisors in Germany are, even without specific statutory franchise laws, subject to pre-contractual disclosure. They must generally disclose those circumstances which may affect the purpose of the contract.
  • Information provided must accurately reflect the realities of the franchise system in question as the necessary basis for any suitable profitability forecast.

本系列内容

消费与零售

France - Franchise and Distribution newsletter #26

Our latest Franchise and Distribution insights across Europe

In-depth analysis

作者 作者

消费与零售

Germany - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Briefing

作者 Dr. Benedikt Rohrßen, Grégoire Toulouse

消费与零售

Netherlands - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Briefing

作者 作者

消费与零售

Poland - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Briefing

作者 Grégoire Toulouse, Ewelina Stobiecka

消费与零售

European Union - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Briefing

作者 Grégoire Toulouse

$name

作者

消费与零售

Austria - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Quick read

作者 Grégoire Toulouse, Stefan Turic

消费与零售

United Kingdom - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

Quick read

作者 Grégoire Toulouse, Mark Owen

Call To Action Arrow Image

Latest insights in your inbox

Subscribe to newsletters on topics relevant to you.

Subscribe
Subscribe

Related Insights

/Taylor Wessing/Images/Search Result Thumbnails/Insights News and Event/Sectors/Consumer  retail/GI-514138327_people modern spiral staircase
消费与零售

France - Franchise and Distribution newsletter #26

Our latest Franchise and Distribution insights across Europe

2021年7月28日
In-depth analysis

作者

点击此处了解更多
/Taylor Wessing/Images/Search Result Thumbnails/Insights News and Event/Sectors/Financial institutions and insurance/GI-173877575-Pen close up
消费与零售

United Kingdom - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

2021年7月28日
Quick read

作者 Grégoire Toulouse 以及 Mark Owen

点击此处了解更多
/Taylor Wessing/Images/Search Result Thumbnails/Insights News and Event/Services/Competition EU  trade/GI-1158590326_Close-Up Of EU Flag
消费与零售

European Union - Franchise and Distribution newsletter #26

Our latest franchise and distribution insights across Europe

2021年7月28日
Briefing

作者 Grégoire Toulouse

点击此处了解更多