Absence of error in the franchise agreement

contrato franquicia

There is no error in the franchise agreement when the franchisee has been warned of the limitations of the business

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There is no error in consent and, therefore, the contract is not void, when the franchisee knows the prohibitions on the use of names of other registered trademarks and equivalences of renowned brands.

We analyze below a case in which the franchisor sued the franchisee for breach of the non-compete and confidentiality agreement. The franchisee filed a counterclaim requesting the nullity of the franchise agreement due to error and / or illegality thereof..

The 3rd Section of the Provincial Court of Mérida passed sentence on 21 April 2020, with No Resolution 78/2020, dismissing the appeal filed by Dña. Blanca, since there is no vice in consent, no illicit business, in the franchise agreement signed between LA BOTICA DE LOS PERFUMES, S.L., and her.

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 BOTIC OF THE PERFUMES, S.L. (LBP, S.L., onwards) and Dña. Blanca, signed a pre-contract and a franchise agreement in 2013, and 2014. The first was the franchisor, and the second, the franchised.

LBP, S.L., She filed a complaint, requesting that it be declared that it had existed breach of the covenant of non-competition and confidentiality, included in the franchise agreement on 20 March 2014, because, on 2016, Ms.. Blanca operated a business with identical characteristics to the object of the franchise agreement.

Primera Instancia

The Court of First Instance No. 3 de Mérida sentenced the 28 June 2019, estimating demand. He condemned Dña. Blanca to pay 120.000 € as a penalty for having violated the non-compete and confidentiality agreement signed in the contract. Rejected the counterclaim Dña. Blanca. The Court did not consider that the contract included unlawful conditions regarding pricing.

Provincial Court

Ms.. Blanca filed an appeal.

It was based on the error in the evaluation of the evidence and the error of the consent, requesting that the signed franchise agreement be declared void. Also, considered that the DLB business, S.L., it was illegal, by illegally taking advantage of the advertising of recognized brands to sell their equivalent perfumes.

The Section dismissed the appeal..

First, because the business has already been declared by jurisprudence, as lawful.

Y tanto en el contrato de marzo de 2014, as in the previous 2013 it warns (“enfáticamente dicen los contratos) de la prohibición de usarel nombre comercial de marcas registradas en los frascos servidos al cliente”, así como deanunciar las equivalencias de nuestras fragancias con respecto a marcas registradas tanto contratipos en cuadros de equivalencias expuestos al público, publicidad en flyers o cualquier otro medio de comunicación o redes sociales”.

Namely, when the contract is signed there is no mistake when hiring, Unlike, the defendant counterclaim knew very well what the limits were regarding the type of business that was going to be faced. “

And as for the vice error, to be able to estimate, “(…) según reiterada jurisprudencia, there is only a vice error when the contractor's will is formed from an inaccurate belief, when the mental representation that serves as a budget for the performance of the contract is wrong or erroneous.

The art. 1266 CCivil provides that, to invalidate consent, the error must fall (in addition to the person, in certain cases) on the substance of the thing that constitutes the object of the contract or on those conditions of the thing that mainly would have given reason to celebrate it.

Jurisprudence has required that error be essential, in the sense of projecting, precisely, about those presuppositions, regarding the substance, qualities or conditions of the object or subject of the contract, that would have been the main cause of their celebration, in the sense of specific cause or reasons incorporated into the cause (STS 215/2013, 8 April).

The error invalidating the contract must be, in addition to essential, excusable, namely, not attributable to the sufferer. The CCivil does not expressly mention this requirement, but it follows from the principles of self-responsibility and good faith. The jurisprudence denies protection to who, with the use of the diligence that was required in the concurrent circumstances, I would have known what I did not know when hiring. ”

When Dña. Blanca signed the contract, there was no mistake, because I knew what were the limits of the type of contract and business.


There is no error in consent and, therefore, the franchise agreement is not void, when the franchisee knows the limitations of the business. The jurisprudence denies protection to who, with the use of due diligence, I would have known what I did not know when hiring.

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