Imposibilidad sobrevenida en el contrato de franquicia

contrato franquicia


Supervening impossibility in the franchise agreement frees the debtor to fulfill the obligation

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Those supervening circumstances regarding the time of perfection of the contract, they can not reach the essential purpose of the same, released to the debtor and cause termination of the franchise agreement.

In the case we reviewed, se suscribió un franchise agreement which was intended operating a petrol station unassisted, unstaffed care public. Following the signing of the contract there was a policy change thwarting the essential purpose of the same. The franchiser urged lawsuit seeking the resolution of the franchise contract for breach of contract with the compensation.

The 14 June 2019 19th Section of the Provincial Court of Barcelona gave judgment understanding that the changed circumstances freeing the franchisee.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 10 December 2014 It was held one franchise agreement entre PETRO LOW COST SL (franquiciadora) and Sr. Baldomero (franchisee).

The object of the contract was the creation of a supply station fuel unassisted, without service personnel, in which customers themselves autoabastecerían.

The project was presented to the Administration for obtaining permission and activity. This was obtained in June the 2015.

The Law 7/2015 of 4 March amending the law 4/1996 of 14 June Statute of Consumers and Users of the Region of Murcia introduced, in a further arrangement, the need for the facility itself was open and while service, of at the least one worker.

The new regulations foiled the business.

PETRO LOW COST action claim filed amount resulting from breach of contract against Mr. Baldomero. He urged resolution declaring the franchise agreement.  claimed 142.507 euros for the damages suffered by the expert opinion of the applicant. He had agreed a penal clause 350.000 Euro but this amount was moderate.

The Mister. Baldomero expressed his disagreement with demand. He alleged that It was not objectively possible to fulfill the contract for the legislative amendment. This determined the extinction of the obligation and not the resolution of the contract.

Primera Instancia

The 12 April 2017 the Court of First Instance No. 28 of Barcelona gave judgment dismissing the lawsuit. The object of the franchise agreement was a service station unassisted. And, the resulting impossibility of legislative change equated the situation to a fortuitous event or force majeure. There was no resolution of the contract. The voluntary agreement embodied in the contract was that of a service unit unassisted. And because of that, legal change prevented their achievement: The application of art. 1184 of the CC left free to the debtor legally be impossible.

Provincial Court

The franchiser appeal filed alleging that the contract did include recruitment and therefore, there was no impossibility declared the scheduled installation remain viable and contracted franchise.

The Court had to determine whether the agreement was an unassisted gas station and its meaning. And if you wanted to by the parties, the legislative amendment AC Murcia, prevented their achievement.

The appellant claimed that the business model was agreed by both staff and, lace had subsequently approved the regulations. They were models of business viability of the unit by hiring three workers to cover shifts.

The 14 June 2019 19th Section of the Provincial Court of Barcelona gave judgment partially estimating demand.

On viability as a determinant of the contractual basis, the Court did not accept the allegations of the appellant. It was intended to sustain the viability at the expense of some provisions that had not been derived from a study sufficiently developed market. This was based on two visits to the gas station environment of the generic conclusion was extracted feasibility of franchising and financing. This analysis looked a worker. The increase in personnel spending meant a decrease in the supposed net profit 93.000 euros to 63.000 annual euros.

This amount of benefits no longer allowed to amortize the installation on schedule duration of the contract. Operation became risky from the standpoint of the franchisee but not the franchisor.

The Court cited the STS 30 June 2014 in connection with modifications based bargaining: “any change of goods and services made grievously, It must be founded on a postulate of conmutatividad, as expression of a basic balance between goods and services are traded. East basic balance It was also worthy of consideration from the causal basis of the contract "when it becomes profoundly altered with consequent disappearance of the basis of the business that gave him meaning and opportunity”.

The principle of good faith in the economy contracts allowed a weighting of results. This is for application of the rule that the covenants must be met on their own terms.

So, it was logical "cuando, outside the agreement and through no fault of the parties is affected,, the circumstances that sense endowed the basis or purpose of the contract profoundly change, the claims of the parties, which according to the principle of good faith it is expected in this context, may be subject to adjustment or revision according to the change (STS 21 May 2009).

The key issue was to analyze “if the change has sufficient entity, namely, alters the state of things in a relevant way ". And if such alteration must have consequences for the parties involved.

It hearing made the following considerations:

1.- The economic basis of the contract allowed to consider economic or exploitation of entrepreneur activity should make provision committed.

2.- It seemed reasonable to consider the hardship on the increased costs of preparing and implementing the provision. The change in circumstances leading to a result repeated loss or disappearance profit margin.

3.- The negative result was detached from the economic relationship that was born of the contract. There was no configuration regarding broader economic valuation parameters.

The Court concluded that the changed circumstances made from the termination of the franchise agreement by impossibility of its object.

Application was art. 1184 CC business model as planned and agreed by the parties to the contract was unenforceable under the new rules. The parties agreed model Unattended supply unit, no permanent staff at the station. This model is outlined in the dossier of pre-contractual information and the own website actora. So good, the viability plan itself contained the possibility personnel costs. But this did not imply doubt about the type of contract offered: Toom desasistida.

The draft did what marked contractually (one unit unassisted). Therefore, the design of the unit and its dependencies were made in accordance with the agreed. Namely, under the premise that no worker would be there. So, the project reaffirmed the idea underlying the contract: a unit unattended without service personnel for public and other internal functions.

What was not anticipated by either party, It was the physical presence of the worker in the supply unit. The new regulatory requirement had truncated the expectations of the contract. There was an inconsistency between the object of the contract and the new regulations. And, the rule change required a new project.

For Hearing,  the new legislation did not allow to achieve the essential purpose of the contract. It was therefore apply art. 1184 CC. It was not admissible termination for default of the defendant and therefore, It was not from the application of the penalty clause agreed, nor to assess the loss of profits for the franchiser.

About, the STS 24 February 1993, determined that "unable to fulfill the benefit due, when not originating, but supervening... plus absolute, final and not attributable to the debtor, frees the same, and if the ratio is synallagmatic obligation, constituye causa de resolución de la misma, ya que determina una situación de incumplimiento, pese a no ser este atribuible al obligado.

And, the STS 7 February 1994, added that "cuando se hable de imposibilidad legal…pueden comprenderse no sólo las disposiciones estatales sino también las de otro origen, and therefore, las Ordenanzas Municipales…”.

However,  la Audiencia determinó que todo lo anterior no impedía la estimación parcial del recurso. El contrato no se había llegado a consumar y tampoco concurría culpa en la actuación de la franquiciadora. Era de aplicación la cláusula 18.4 del contrato en relación con la 18.5. que exigían la restitución de la documentación, la liquidación de todas las sumas debidas por una y otra parte y el cumplimiento de todos pagos nacidos. Ello hasta su total saldo y finiquito.

No se habían generado derechos de gestión ni royalties, pero sí derechos de entrada. Estos quedaron fijados en la suma de 2.800 euros.

Therefore, la Audiencia estimó parcialmente el recurso de apelación. Confirmó la sentencia respecto a la causa de extinción del contrato. Condenó al Sr. Baldomero a satisfacer a la actora la suma de 2.800 euros.


La imposibilidad sobrevenida del cumplimiento del objeto del contrato libera al deudor y constituye causa de extinción de las obligaciones en un franchise agreement.

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