Commercial Agency Franchise And Distribution Contracts Principles of European Law Study Group on European Law

Principles of European Law on Commercial Agency, Franchise and Distribution Contracts PEL CAFDC... Principles of European LawStudy Group on a European Civil Code Commercial Agency, Fran

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Principles of European Law on Commercial Agency, Franchise and Distribution Contracts

( PEL CAFDC )

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Principles of European Law

Study Group on a European Civil Code

Commercial Agency, Franchise

and Distribution Contracts

with advice from the Advisory Council

approved by the Co-ordinating Group

Stæmpfli Publishers Ltd Berne

European Law Publishers

Sellier.

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The Dutch Working Team

Georgios ArnokourosLLM (Greek Law), Professor Maurits Barendrecht (Team Leader),Lic Rui Miguel Prista Patrı´cio Casca˜o (Portuguese Law), Odavia Bueno DiazLLM Leuven(Spanish Law), John Dickie (Team Manager Utrecht, English Law, until 2002), GiuseppeDonatello, Professor Martijn Hesselink (Team Leader), Dr Viola Heutger (Team ManagerUtrecht), Professor Ewoud Hondius (Team Leader), Dr Christoph Jeloschek (AustrianLaw), Roland Lohnert (until June 2002), Prof Marco Loos (Team Manager Tilburg),

Dr Andrea Pinna (French Law), Dr Jacobien Rutgers (Team Manager Amsterdam, sinceApril 2001), Dott.ssa Manola Scotton (Italian Law), Dr Hanna Sivesand (SwedishLaw), Mr Muriel Veldman (Dutch Law), Mr Hester Wattendorff (Team ManagerAmsterdam, until July 2000), Aneta Wiewiorowska (Polish law)

External Reporters:

Dr Andre Jansen (Mnster) (German law), Dr Soili Nysten-Haarala, (Finnish reporter)The Advisory Council on Commercial Agency, Franchise and Distribution ContractsProfessor Johny Herre (Stockholm), Professor Je´roˆme Huet (Paris), Professor EwanMcKendrick (Oxford), Professor Peter Schlechtriem (Freiburg i.Br.), Professor Hugh Beale(London/Warwick), Professor Christina Ramberg (Stockholm)

The Co-ordinating Group

Professor Guido Alpa (Genua/Rome), Professor Kaspars Balodis (Riga, since December2004), Professor Christian v Bar (Osnabrck), Professor Maurits Barendrecht (Tilburg),Professor Hugh Beale (London), Professor Michael Joachim Bonell (Rome), ProfessorMifsud G Bonnici (Valetta, since December 2004), Professor Carlo Castronovo (Milan),Professor Eric Clive (Edinburgh), Professor Ulrich Drobnig (Hamburg), Professor Be´ne´dicteFauvarque-Cosson (Paris), Professor Marcel Fontaine (Leuven, until December 2003),Professor Andreas Furrer (Luzern, since December 2003), Professor Jacques Ghestin(Paris), Professor Sir Roy Goode (Oxford, until December 2002), Professor ViggoHagstrøm (Oslo, since June 2002), Professor Arthur Hartkamp (The Hague), JustitierdetProfessor Torgny Ha˚stad (Stockholm), Professor Johnny Herre (Stockholm), ProfessorMartijn Hesselink (Amsterdam), Professor Ewoud Hondius (Utrecht), Professor GiovanniIudica (Milan, since June 2004), Professor Konstantinos Kerameus (Athens), ProfessorOle Lando (Copenhagen), Professor Ka˚re Lilleholt (Bergen, since June 2003), ProfessorBrigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud(Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor ValentinasMikelenas (Vilnius, since December 2004), Dr Niamh Molony (Belfast, since December2003), Professor Eoin O’Dell (Dublin), Professor Edgar du Perron (Amsterdam), ProfessorJohannes Rainer (Salzburg), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg(Gothenburg), Professor Philippe Re´my (Poitiers), Judge Professor Encarna Roca y Trias(Madrid/Barcelona), Professor Peter Schlechtriem (Freiburg i Br.), Professor MartinSchmidt-Kessel (Osnabrck, since December 2004), Professor Denis Philippe (Leuven,since June 2004), Professor Jorge Sinde Monteiro (Coimbra), Professor Lena Sisula-Tulokas(Helsinki), Professor Sophie Stijns (Leuven), Professor Matthias Storme (Leuven),

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Professor Jan Svidron (Trnava, since June 2005), Dr Stephen Swann (Osnabrck),Professor Lubos˘ Tichy´ (Prague, since June 2005), Professor Verica Trstenjak (Maribor),Professor Paul Varul (Tartu, since June 2003), Professor Lajos Ve´ka´s (Budapest), ProfessorAnna Veneziano (Rome)

Further Members of the Study Group’s Advisory Councils

Professor John W Blackie (Strathclyde, Tort Law), Professor Michael G Bridge (London,Property Law and Securities), Professor Angel Carrasco (Toledo, Securities), ProfessorPierre Crocq (Paris, Securities), Dr Eugenie Dacoronia (Athens, Tort Law and RentingContracts), Professor Marie Gore´ (Paris, Structure), Professor Helmut Grothe (Berlin,Renting Contracts), Professor Je´roˆme Huet (Paris, Sales, Services, Agency, Franchiseand Distribution Contracts), Professor Jan Kleineman (Stockholm, Tort Law), Docent

Dr Irene Kull (Tartu, Renting Contracts), Professor Guillermo Palao Moreno (Valencia,Tort Law), Professor Antoni Vaquer Aloy (Lleida, Renting Contracts), Professor AlainVerbeke (Leuven, Renting Contracts), Professor Anders Victorin (Stockholm, RentingContracts), Professor Sarah Worthington (London, Renting Contracts)

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ISBN-10 3-935808-43-7 (Sellier European Law Publishers)

ISBN-13 978-3-935808-43-9 (Sellier European Law Publishers)

Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet ber http:/ /dnb.ddb.de abrufbar.

2006 by Sellier European Law Publishers, Munich together with

Study Group on a European Civil Code.

Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschtzt Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulssig und strafbar Das gilt insbesondere fr Vervielfltigungen, bersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen.

Das Register wurde erstellt von RA Dr Martina Schulz, Pohlheim The Index was prepared by RA

Dr Martina Schulz, Pohlheim.

Gestaltung: Sandra Sellier, Mnchen Herstellung: Karina Hack, Mnchen Satz: fidus Service GmbH, Augsburg Druck und Bindung: Friedrich Pustet KG, Regensburg Gedruckt auf sure- freiem, alterungsbestndigem Papier Printed in Germany

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The Study Group on a European Civil Code has taken upon itself the task of draftingcommon European principles for the most important aspects of the law of obligationsand for certain parts of the law of property in moveables which are especially relevantfor the functioning of the common market It was founded in 1999 as a successor body

to the Commission on European Contract Law, on whose work the Study Group isbuilding

The two groups pursue identical aims However, the Study Group has a more reaching focus in terms of subject-matter and as an ultimate goal it aspires to a con-solidated composite text of the material worked out by itself and the Commission onEuropean Contract Law Both groups have undertaken to ascertain and formulateEuropean standards of ‘patrimonial’ law for the Member States of the European Union.The Commission on European Contract has already achieved this for the field ofgeneral contract law (Lando and Beale [eds.], Principles of European Contract Law, Parts

far-I andIIcombined and revised, The Hague, 2000; Lando/Clive/Pru¨m/Zimmermann [eds.],Principles of European Contract Law PartIII, The Hague, 2003) These Principles ofEuropean Contract Law (PECL) are being adopted with adjustments by the Study Group

on a European Civil Code to take account of new developments and input from itsresearch partners The Study Group is itself dovetailing its principles with those of the

PECL, extending their encapsulation of standards of patrimonial law in three directions:(i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations, i e the law of tort /delict, the law of unjustified enrichment,and the law of benevolent intervention in another’s affairs (negotiorum gestio); and (iii)

by developing rules for fundamental questions in the law on mobile assets – in particulartransfer of ownership and security for credit

Like the Commission on European Contract Law’s Principles of European ContractLaw, the results of the research conducted by the Study Group on a European CivilCode seek to advance the process of Europeanisation of private law We have under-taken this endeavour on our own personal initiative and merely present the results of apan-European research project It is a study in comparative law in so far as we havealways taken care to identify the legal position in the Member States of the EuropeanUnion and to set out the results of this research in the introductions and notes That ofcourse does not mean that we have only been concerned with documenting the pool ofshared legal values or that we simply adopted the majority position among the legalsystems where common ground was missing Rather we have consistently striven todraw up “sound and fitting” principles, that is to say, we have also recurrently developedproposals and concepts for the further development of private law in Europe

The working methods of the Commission on European Contract Law and the StudyGroup on a European Civil Code are or were likewise quite similar The Study Group,however, has had the benefit of Working (or Research) Teams – groups of younger legalscholars under the supervision of a senior member of the Group (a Team Leader) whichundertook the basic comparative legal research, developed the drafts for discussion and

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assembled the extensive material required for the notes Furthermore, to each WorkingTeam was allocated a consultative body – an Advisory Council These bodies – delib-erately kept small in the interests of efficiency – were formed from leading experts inthe relevant field of law who are representative of the major European legal systems.The proposals drafted by the Working Teams and critically scrutinised and improved in

a series of meetings by the respective Advisory Council were submitted for discussion on

a revolving basis to the actual decision-making body of the Study Group on a EuropeanCivil Code, the Co-ordinating Group Until June 2004 the Co-ordinating Group con-sisted of representatives from all the jurisdictions belonging to theEUimmediately prior

to its enlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary,Norway, Poland, Slovenia and Switzerland Representatives from the Czech Republic,Malta, Latvia and Lithuania joined us after the June meeting 2004 in Warsaw However,due to reasons of time and capacity, it was only occasionally possible to summarise inthe notes the current legal position in the new Member States of theEU We are keen

to fill the outstanding gaps (of which we are only too painfully aware) at a later point intime

Besides its permanent members, other participants in the Co-ordinating Group withvoting rights included all the Team Leaders and – when the relevant material was up fordiscussion – the members of the Advisory Council concerned The results of thedeliberations during the week-long sitting of the Co-ordinating Group were incorpo-rated into the text of the articles and the commentaries which returned to the agendafor the next meeting of the Co-ordinating Group (or the next but one depending on thework load of the the Group and the Team affected) Each part of the project was thesubject of debate on manifold occasions, some stretching over many years Where aunanimous opinion could not be achieved, majority votes were taken As far as possiblethe Articles drafted in English were translated into the other languages either bymembers of the Team or third parties commissioned for the purpose The number oflanguages into which the articles could be translated admittedly varies considerablyfrom volume to volume That is in part a consequence of the fact that not all WorkingTeams were equipped with the same measure of financial support We also had to resignourselves to the absence of a perfectly uniform editorial style Our editing guidelinesprovided a common basis for scholarly publication, but at the margin had to accom-modate preferences of individual teams However, this should not cause the reader anyproblems in comprehension

Work on these Principles had begun long before the European Commission lished its Communication on European Contract Law (in 2001), its Action Plan for amore coherent European contract law (in 2003), and its follow-up Communication

pub-“European Contract Law and the revision of the acquis: the way forward” (in 2004) (All

of these documents concerning European contract law are available on the sion’s website: http:/ /europe.eu.int/comm/consumers /cons_int/safe_shop/fair_bus_pract/cont_law /index_en.htm) These documents for their part were published before weformed the Network of Excellence, together with other European research groups andinstitutions, which will collaborate in the preparation of an academic Common Frame

Commis-of Reference with the support Commis-of funds from the European Community’s Sixth work Programme The texts laid before the public by the Study Group on a EuropeanCivil Code are therefore not necessarily identical with those which the Network ofExcellence will propose to the European Commission for adoption in the Common

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Frame of Reference Rather they represent for the time being texts which the StudyGroup considers should serve as the starting point for the comprehensive process ofdiscussion and consultation envisaged for the coming years Whether that process willrequire any changes to our texts (and, if so, which changes) is something which willhave to be weighed up carefully in a spirit of academic independence after a review ofthe arguments The political domain can then determine at a later date which of ourproposals, if any, it wishes to take up

In order to leave no room for misunderstanding, it is important to stress that thesePrinciples have been prepared by impartial and independent-minded scholars whosesole interest has been a devotion to the subject-matter None of us have been rewardedfor taking part or mandated to do so None of us would want to give the impression that

we claim any political legitimation for promoting harmonisation of the law Our imation is confined to curiosity and an interest in Europe In other words, the volumes

legit-in this series are to be understood exclusively as the results of scholarly legal researchwithin large international teams Like every other scholarly legal work, they restate thecurrent law and introduce possible models for its further development; no less, but also

no more We are not a homogenous group whose every member is an advocate of theidea of a European Civil Code We are, after all, only a Study Group The questionwhether a European Civil Code is or is not desirable is a political one to which eachmember can only express an individual view

Osnabrck, June 2005 Christian v Bar

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Our Sponsors

The project of the Study Group on a European Civil Code represents a research deavour in legal science of extraordinary magnitude Without the generous financialsupport of many organisations its realisation would not have been possible

en-Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which hassupplied the lion’s share of the financing including the salaries of the Working Teamsbased in Germany and the direct travel costs for the meetings of the CoordinatingGroup and the numerous Advisory Councils The work of the Dutch Working Teamswas financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO) and

by the Universiteit van Amsterdam Further personnel costs were met by the FlemishFonds voor Wetenschappelijk Onderzoek-Vlaanderen (FWO), the Onassis-Foundation, theAustrian Fonds zur Fo¨rderung der wissenschaftlichen Forschung and the Fundac¸a˜o CalousteGulbenkian

In addition we have consistently been able to fall back on funds made available tothe respective organisers of the week long sittings of the Coordinating Group by therelevant university or other sources within the country concerned It is therefore withthe deepest gratitude that I must also mention the Consiglio nazionale forense (Rom) andthe Istituto di diritto privato of the Universita` di Roma La Sapienza, which co-financed themeeting in Rome (June 2000) The session in Salzburg (December 2000) was supported

by the Austrian Bundesministerium fu¨r Bildung, Wissenschaft und Kultur, the Universita¨tSalzburg and the Institut fu¨r Rechtspolitik of the Universita¨t Salzburg The discussions inStockholm (June 2001) were assisted by the Department of Law, Stockholm University,the Supreme Court Justice Edward Cassel’s Foundation and Stiftelsen Juridisk Fakultetslitter-atur (SJF) The meeting in Oxford (December 2001) had the support of Shearman &Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP).The session in Valencia (June 2002) was made possible by the Asociacioń Nacional deRegistradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de Vale`ncia, theMinisterio Espanõl de Ciencia y Tecnologıá, the Facultad de Derecho of the Universitat deVale`ncia, the Departamento de Derecho Internacional, Departamento de Derecho Civil andthe Departamento de Derecho Mercantil ‘‘Manuel Broseta Pont’’ of the Universitat deVale`ncia, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, theDiputacioń Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados

de Valencia and Aranzadi Publishing Company The subsequent meeting in Oporto cember 2002) was substantially assisted by the Universidade Cato´lica Portuguesa – CentroRegional do Porto For the week long session in Helsinki (June 2003) we were able to rely

(De-on funds from Suomen Kultuurirahasto (Finnish Cultural Foundati(De-on), the Niilo derin Sa¨a¨tio¨ (Niilo Helander Foundation), the Suomalainen Lakimeisyhdistys (FinnishLawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, theNordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., theDepartment of Private Law and the Institute of International Commercial Law (KATTI) ofHelsinki University The session in Leuven (December 2003) was supported by KatholiekeUniversiteit Leuven, Faculteit Rechtsgeleerdheid, and theFWOVlaanderen Fonds voor We-

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Helan-Our Sponsors

tenschappelijk Onderzoek (Flanders Scientific Research Fund) The meeting of the Group

in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy(The Cooperation Fund) and the Faculty of Law and Administration of Warsaw Uni-versity The meeting in Milan (December 2004) was supported by the Universita` Bocconiand its Istituto di diritto comparato, by the Milan Camera di Commercio, by the Associa-zione Civilisti Italiani and by the Comune di Milano The meeting in Berlin (June 2005)was made possible by PricewaterhouseCoopers DeutschlandAG, Frankfurt/Berlin; Sievert

AG & Co., Osnabrck, and by Verband deutscher Hypothekenbanken e V., Berlin Wethank all of these organisations and institutions for the funds which they made available

to us and for the extraordinary warmth of hospitality with which our hosts received us

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Preface to this volume

These principles are the result of a truly European project

They were prepared by the Amsterdam sub-team within the Dutch Working Team ofthe Study Group on a European Civil Code Each junior researcher within the Am-sterdam Team was responsible for a specific subject, Muriel Veldman for commercialagency (chapter 2), Odavia Bueno Daz for franchising (chapter 3) and Manola Scottonfor distribution (chapter 4) This responsibility included the actual drafting (and re-drafting after discussion) of the articles and comments I was responsible for the generalprovisions (chapter 1)

The drafts were presented and discussed, on several occasions, during the two-weeklymeetings of the entire Dutch Working Team The Dutch Working Team consisted ofjunior researchers from virtually all the Member States (at the time) and was led byProfessors Ewoud Hondius, Maurits Barendrecht and myself The members of the DutchTeam also produced the country reports which provided the basis for the comparativeNotes

Once the drafts were approved they were discussed with the Advisory Council whichwas composed of Professors Johnny Herre, Jrme Huet and Peter Schlechtriem whocame to the Netherlands for several meetings which usually lasted several days Duringthe last two, they were joined by Professors Hugh Beale, Eric Clive and ChristinaRamberg from the Drafting Group

After amendment, the drafts were submitted to the Co-ordinating Committee Theywere discussed during meetings in Valencia (June 2002), Porto (December 2002) andHelsinki (June 2003) which were chaired by Professor Marcel Fontaine The finalreading of these principles took place during the meeting in Helsinki in June 2003where the present text was adopted

Since then the Working Team worked on the editing of the Comments and theNotes The bulk of this enormous and crucial task was taken care of by Dr JacobienRutgers, the Co-ordinator of the Amsterdam team The Notes are based on countryreports which were prepared by the members of the Dutch Team

In the meantime some very important political developments have taken place InFebruary 2003 the European Commission published its Action Plan on European con-tract law where it announced that it would adopt a ‘Common Frame of Reference’(CFR) which would be prepared by scholars Subsequently, in 2005 the task of preparingtheCFRwas entrusted to a Network of Excellence (NoE) in which the Study Group on

a European Civil Code participates As a result, the present principles will become thebasis for the academic draftCFRthat the NoE will submit to the Commission in 2007.For that reason, these principles were discussed with the stakeholders within theCFR

Net, during a Workshop in Brussels in March 2005 However, it is important to pointout that the comments from the stakeholders have not been taken into account in thepresent publication They will be addressed in a separate response which may containrevised drafts of some articles

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The present principles have both the benefits and the drawbacks of an academicproject On the one hand they have been prepared by a large, international group ofindependent scholars without any pressure from special interest groups or nationalgovernments On the other, however, they lack the democratic legitimacy of truelegislation.

I would like to warmly thank the members of the Amsterdam Team, the Dutch team,the Advisory Council, the Drafting Group and the Co-ordinating Committee for theircontributions to this wonderful European collaboration – a unique experience

To embark upon telling anecdotes from the many discussions, dinners and receptionsacross Europe would be totally out of place, I suppose Therefore, I will refrain fromdoing that, with some regret However, I cannot resist the temptation to express myfeeling that if the wonderful atmosphere during all these European gatherings is onlyslightly representative of European collaboration, the future of Europe is very bright.Amsterdam, August 2005 Martijn W Hesselink

Preface to this volume

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Short Table of Contents

Principles of European Law on

Commercial Agency, Franchise and Distribution Contracts

Chapter 1: General Provisions

Section 1: Scope of Chapter 1

Section 3: Ending and Termination

Article 1:301: Contract for a Definite Period 117

Article 1:302: Unilateral Ending of a Contract for an Indefinite Period 122

Article 1:303: Damages for Non-Observance of Notice Period 131

Article 1:304: Termination for Non-Performance 136

Article 1:305: Indemnity for Goodwill 141

Article 1:306: Stock, Spare Parts and Materials 148

Section 4: Other General Provisions

Article 1:401: Right of Retention 152

Article 1:402: Signed Written Document 154

Chapter 2: Commercial Agency

Section 1: General

Article 2:101: Scope 157

Section 2: Obligations of the Commercial Agent

Article 2:201: Negotiate and Conclude Contracts 161

Article 2:202: Instructions 164

Article 2:203: Information during Performance 166

Article 2:204: Accounting 169

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Section 3: Obligations of the Principal

Article 2:301: Entitlement to Commission During the Contract 173

Article 2:302: Entitlement to Commission After the Contract 177

Article 2:303: Prevailing Entitlement to Commission 182

Article 2:304: Moment when Commission is to be Paid 184

Article 2:305: Entitlement to Commission Extinguished 186

Article 2:306: Remuneration 188

Article 2:307: Information during Performance 190

Article 2:308: Information on Acceptance, Rejection and Non-Performance 192

Article 2:309: Warning of Decreased Volume of Contracts 195

Article 2:310: Commission Statement and Extract from the Books 198

Article 2:311: Accounting 200

Article 2:312: Amount of Indemnity 202

Article 2:313: Del Credere Clause 207

Chapter 3: Franchise

Section 1: General

Article 3:101: Scope 210

Article 3:102: Pre-Contractual Information 215

Section 2: Obligations of the Franchisor

Article 3:201: Intellectual Property Rights 222

Article 3:202: Know-How 225

Article 3:203: Assistance 228

Article 3:204: Supply 232

Article 3:205: Information during the Performance 235

Article 3:206: Warning of Decreased Supply Capacity 239

Article 3:207: Reputation of Network and Advertising 242

Section 3: Obligations of the Franchisee

Article 3:301: Fees, Royalties and Other Periodical Payments 247

Article 3:303: Business Method and Instructions 251

Article 3:304: Inspection 254

Chapter 4: Distribution

Section 1: General

Article 4:101: Scope and Definitions 257

Section 2: Obligations of the Supplier

Article 4:201: Supply 265

Article 4:203: Warning of Decreased Supply Capacity 272

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Article 4:204: Advertising Materials 274

Article 4:205: Reputation of the Products 276

Section 3: Obligations of the Distributor

Article 4:301: Distribution 279

Article 4:303: Warning of Decreased Requirement 283

Article 4:304: Instructions 285

Article 4:305: Inspection 288

Article 4:306: Reputation of the Products 290

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Contratos Mercantiles de Agencia, Franquicia y Distribucin

Principles of European Law on

Commercial Agency, Franchise and Distribution Contracts

Introduction

II Economic Function: Marketing (Vertical Agreements) 91

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Table of Contents

III Relation to General Contract Law (PECL) 92

IV Relation To Competition Law 92

V Mainly Default Rules; Some Mandatory Protection 93

VI The Structure: General And Specific Rules 95

VII External Relationship Not Dealt With 96

Chapter 1: General Provisions

Section 1: Scope of Chapter 1

D Three Contracts: Commercial Agency, Franchise, Distribution 98

E Other Vertical Agreements; not Advertisement 98

F Independent Business Persons; not Employees 99

G Other Long-Term Contracts 99

2 Specific Rules concerning Commercial Agency 100

3 Specific Rules concerning Franchise Contracts 101

4 Application of Commercial Agency Rules by Way of

Analogy to Franchise Contracts 101

5 Specific Rules concerning Distribution Contracts 101

6 Application of Commercial Agency Rules by way of

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Table of Contents

F Character of the Rule 105

Notes

1 Specific Statutory Rules concerning Pre-Contractual Information 105

2 General Statutory Rules concerning Pre-Contractual Information 105

3 Other sources of an Obligation concerning Pre-Contractual Information 106

F Specific Obligations to Co-Operate 108

G Character of the Rule 109

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Table of Contents

D Protection of Know-how 114

E Confidential Information 114

F Contractual and Post-Contractual 115

G Information Already Public 115

H Character of the Rule 115

Notes

1 Confidentiality during the Period of the Contract 115

2 Post-Contractual Obligation 116

3 Information already Disclosed to the Public 116

Section 3: Ending and Termination

Article 1:301: Contract for a Definite Period

E Notice of Renewal and Response to Non-Renewal 119

F Continued Performance: A New Contract subject to the Old Conditions 119

G Right to End a Contract for an Indefinite Period 120

Notes

1 No Right to End a Contract for a Definite Period Unilaterally 120

2 Notices of Non-Renewal and of Renewal 121

D Receipt Principle Governs Notice 125

E No ‘Good Reason’ Required for Ending the Contract 125

F Reasonableness of the Period of Notice 125

G Presumption of Reasonableness 127

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Table of Contents

I Agreed Longer Periods 128

J Damages the Only Remedy; Specific Performance in Exceptional Cases 128

K Character of the Rule 128

Notes

1 Right to End (General) 129

2 Fixed Notice Period 129

3 Reasonable Notice Period 130

4 Minimum Notice Period for the Principal, Franchisor or Supplier 130

5 Consequences of Disregarding the Notice Period 131

Article 1:303: Damages for Non-Observance of Notice Period

G General Rules on Damages Applicable 134

Notes

1 Entitlement to Damages in the case of Non-Observance of the

2 Calculation of the Damages 135

Article 1:304: Termination for Non-Performance

2 Termination for Substantial or Intentional Non-Performance 139

3 Ending for Important and Urgent Reasons 139

4 No Termination if Proper Performance was ‘of the Essence’ 140

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E Commercial Agency, Franchise and Distribution Distinguished 142

F Continuous Substantial Benefits 142

G Reasonable Indemnity 143

H Relation to Damages for Irregular Ending 143

I Relation to Compensation for Post-Contractual Non-Competition 143

J Relation to Commission Agent After Contract 143

L Character of the Rule 144

Notes

1 Indemnity for Goodwill 144

2 Compensation for Damages 145

3 Indemnity for goodwill in the case of distribution contracts 146

4 Application of the Commercial Agency Rule concerning Indemnity

for Goodwill by way of analogy to Franchise or Distribution Contracts 146

5 No Indemnification for Goodwill in the case of Franchise

and Distribution Contracts 147

6 Entitlement to Damages because of Non-Observance of Notice Period 147

Article 1:306: Stock, Spare Parts and Materials

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Table of Contents

Section 4: Other General Provisions

Article 1:401: Right of Retention

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Section 2: Obligations of the Commercial Agent

Article 2:201: Negotiate and Conclude Contracts

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1 Obligation to Keep Separate Accounts 171

Section 3: Obligations of the Principal

Article 2:301: Entitlement to Commission During the Contract

Comments

B Interests at Stake and Policy Considerations 174

D Result of the Agent’s Efforts 174

E Customers from a Specific Geographical Area or Group 175

F Performance of the Contract with the Customer 175

2 Entitlement to Commission during the Contract 177

3 The Moment when Commission is ‘Due’ 177

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E Mainly the Result of the Agent’s Efforts 179

F Performance of the Contract with the Customer 180

G After the Contract 180

H Relation to an Indemnity for Goodwill and to Damages for

Non-observance of the Period of Notice 180

I Character of the Rule 180

Notes

2 Entitlement to Commission 181

3 The Moment when Commission is ‘Due’ 181

Article 2:303: Prevailing Entitlement to Commission

Comments

D Reasonableness of Shared Entitlement 183

E Character of the Rule 183

Notes

1 Prevailing Right to Commission 183

2 Character of the Rule 183

Article 2:304: Moment when Commission is to be Paid

Comments

C Relation to thePECL 184

D Character of the Rule 185

Notes

1 Moment when Commission is to be paid 185

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D Non-performance of the Contract with the Customer 187

Notes

1 Entitlement to Commission Extinguished 187

Article 2:306: Remuneration

Comments

1 Information during Performance 192

2 Characteristics of the Goods or Services, Prices and

Conditions of Sale or Purchase 192

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Article 2:309: Warning of Decreased Volume of Contracts

F Expectations of the Commercial Agent 196

Notes

1 Warning of Decreased Volume 197

2 Reasonable Period 197

Article 2:310: Commission Statement and Extract from the Books

2 Extracts from the Principal’s Books 200

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Table of Contents

Article 2:311: Accounting

Comments

C Relation toPECLand ECC 201

Notes

1 Reasonable Access to the Principal’s Books 202

Article 2:312: Amount of Indemnity

Comments

D New or Old Customers 204

E Likely Future Duration of Benefits 204

G Average Interest Rate 204

H Maximum Amount of Indemnity 204

J Character of the Rule 205

Notes

1 Calculating the Amount of Indemnity 205

2 Maximum Amount of Indemnity 207

Article 2:313: Del Credere Clause

Comments

C Relation toPECLand ECC 208

D Character of the Rule 208

Notes

1 Del Credere Clause 208

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Table of Contents

3 Particular Contracts or Particular Clients 209

4 A Reasonable Cause Taking into Account the Interests of the Parties 209

5 Del Credere Commission 209

3 To Conduct a Business in its Own Name and on its Own Behalf 213

4 In Exchange for Remuneration 214

5 To Conduct a Business within the Franchisor’s Network 214

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Table of Contents

Article 3:201: Intellectual Property Rights

Comments

D Granting Intellectual Property Rights 223

E Intellectual Property Rights Necessary for the Operation of

the Franchise Business 223

F Undisturbed and Continuous Use of Intellectual Property Rights 223

Notes

1 Granting of Intellectual Property Rights 224

2 Undisturbed and Continuous Use 225

Section 2: Obligations of the Franchisor

Article 3:202: Know-How

Comments

D Necessary Know-How 226

E Regularly Reviewed Know-how 226

F Protection of Know-How 227

G Relation to Article 3:205 (Information during the Contract) 227

D Necessary Assistance 230

E Responsive to Reasonable Requests for Further Assistance 230

F Without Additional Cost 230

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Table of Contents

Notes

1 Obligation to Provide Assistance 231

2 Free of Extra Charge 231

1 The Franchisor’s Obligation to Inform its Franchisee 239

Article 3:206: Warning of Decreased Supply Capacity

Comments

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D Reasonable Efforts 244

E Appropriate Advertising Campaigns 244

F Without Additional Cost 244

Section 3: Obligations of the Franchisee

Article 3:301: Fees, Royalties and Other Periodical Payments

E Calculation of Royalties and Periodical Payments 248

Notes

1 Payment of Fees, Royalties or Other Periodical Payments 249

2 Unilateral determination of Fees, Royalties and Other Periodical Payments 249

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1 The Franchisee’s Obligation to Inform the Franchisor 251

Article 3:303: Business Method and Instructions

Comments

E Reasonable Instructions 252

F Reasonable Care not to Harm the Franchise Network 253

Notes

1 Reasonable Efforts to Operate according to the Franchisor’s

2 Obligation to Follow Instructions 253

3 Reasonable Care not to Harm the Franchise Network 254

Article 3:304: Inspection

Comments

1 Right to Inspect the Franchisee’s Premises 256

2 Access to the Books 256

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D Purchasing and Selling of Products 259

E Distribution of Services 259

G In the Distributor’s Name 259

H On the Distributor’s Behalf 259

I Framework Agreement 259

J Exclusive Distribution Contracts 260

K Selective Distribution Contracts 260

L Exclusive Purchasing Contracts 261

3 Exclusive Distribution, Selective Distribution, Exclusive Purchasing 263

Section 2: Obligations of the Supplier

Article 4:201: Supply

Comments

D Obligation to Supply and Contrat d’Application 266

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1 Information during the Performance 271

Article 4:203: Warning of Decreased Supply Capacity

F Expectations of the Distributor 273

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Article 4:205: Reputation of the Products

Comments

E Liability of the Supplier 277

Notes

1 Reputation of the Products 278

Section 3: Obligations of the Distributor

D Reasonable Efforts in so far as Practicable 280

Notes

1 Obligation to Promote the Sales of the Products 280

Article 4:302: Information during the Performance

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