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The franchise: only 242 sentences in six years
Published in El Economista
, 23 - November , 2018 
Opinion recommendations and legal news
64.8 percent of the procedures have been requested by the franchisors. The majority of complaints are for the non-payment of royalties, to violate post-contractual non-competition or the imposition of suppliers.
Two are not a crowd, but they are enough for a battle. The franchise is based on a commercial relationship by which a company, the franchisor, transfers to a third party, the franchisee, their know-how and brand in exchange for financial compensation. There are two parts that make up a franchise. A couple whose relationship many compare even to that of a marriage and in which, sometimes, friction may arise. Not many. The data shows that the nuptials of franchises that end up interpreting the War of the Rose are anecdotal. This commercial system carried out a total of 242 sentences between 2012 and 2017. In this way, the degree of ligitiosity of the franchise shows an average percentage of 0.08 percent. The most recurring issues that end up in the courts have to do with the claim of nullity of the contract for defects in the consent of the franchisee, as well as breaches by the franchisor for not providing technical assistance, or breach of the franchisee (payment of royalties, violate post-contractual non-competition or imposition of suppliers).
This is the result of the second edition of the Observatory of Franchise Jurisprudence in Spain, a statistical study that offers a quantitative and qualitative radiography on the level of litigation that exists in terms of franchising in our country. During the six years analyzed, the number of resolutions issued is relatively stable, occurring between 39 and 45 per year, with the sole exception of the year 2015, in which the number of sentences decreased to 33. Regarding sentences, 234 were handed down by the Provincial Hearings, seven by the Supreme Court and one by the General Court of the European Union.
The report, prepared by the Committee of Legal Experts of the Spanish Association of Franchisors (AEF) in collaboration with the Cajamar Cooperative Group, points out that there are probably more controversies than the judicial ones, but the fact that the parties do not resort to judicial assistance to resolving their differences shows that the systems of mediation, negotiation and / or conciliation are successful and allow their differences to be resolved in a reasonable manner. Something that puts in value "the maturity, consistency and strength of the franchise system in Spain", said the president of the AEF, Luisa Masuet, during the presentation of the study.
The franchisor is the one who takes the most from the courts. 64.8 percent of the procedures have been requested by them and the remaining 35.2 percent by the franchisees. The average percentage of favorable resolutions to the franchisor is 67.95 percent.
The president of the Committee of Legal Experts of the AEF, Jordi Ruiz de Villa, points out that the Provincial Courts have failed 234 times on aspects related to this business model. 159 of them were resolved in favor of the franchisor. On the other hand, Ruiz de Villa emphasizes that "the number of judgments tends to decrease, because of a lower number of demands urged by the franchisor, while those urged by the franchisees remain stable." In absolute terms, the number of procedures initiated by the franchisor tends to be reduced, going from 27 in 2014 to 22 in 2017, while the number of demands urged by the franchisee remains stable, around 16. that, having a total decrease in sentences, the percentage of procedures urged by the franchisee increases.
The sectors of activity that present a greater litigiousness are those of catering and fashion with a total of 45 procedures during the period analyzed. Next to them is the one for financial services brands, with 17 procedures. Ruiz de Villa points out that it is normal for restaurants and fashion to be the ones with the highest number of litigation, since they are also the ones with the highest number of brands and franchisees. Not so the financial services, which has an anomalous degree of litigation, 7.26 percent of litigation comes from this sector.
Among the judgments handed down during this period is the one already known as the Foster's ruling. The jurisprudence is majority in the sense that the franchise contract does not grant a promise of results to the franchisor, but Foster's' judgment of the Audiencia Provincial de Ávila, June 2015, determined that the franchisor had infringed its duty to grant a true and real pre-contractual information, since the results that facilitated the franchisee, were impossible to obtain. In this way, the Court considers that the franchisor could not demand compliance with the contract or its resolution since he had previously breached an essential obligation. Another ruling on which the focus of attention was placed is that issued by the Provincial Court of Valencia last year in which both the franchisor and the franchisee are responsible for certain damages caused to a patient in the context of a surgery intervention. esthetic. The patient claimed in front of the franchisor for medical responsibility.
