Franchisee compensation claim analogous to § 89b HGB (German Commercial Code)

31. Mar 2018 News

As of early 2018, it is unclear whether franchisees can claim equalization rights in accordance with § 89b HGB. The assumption of compensation claims is likely to leave little room after the court decisions of the past few years. Thus, in the case of an “anonymous mass transaction” of the franchisee a right to compensation from the outset was denied (BGH VII ZR 109/13). The decision was made by the OLG Hamm (OLG Hamm 18 U 35/13). The so-called “Joop!” Decision (BGH I ZR 3/09) of 29 April 2010 on a trademark license agreement can also be interpreted through franchising conditions so that compensation claims can only be considered if and insofar as a franchisee has products which the franchisor has manufactured / delivered.

The last word form the courts has not been made yet; so far (as of early 2018), the BGH has not decided under what conditions (or, if so) franchisees can be entitled to post-contractual compensation claims.

The outcome of this case is will be interesting.

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