Termination of the franchise “mutual consent”

contrato franquicia

The “mutual consent” It is grounds for termination of a franchise agreement


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The mutual consent It occurs when the parts of a legal transaction fail to fulfill their obligations to each other and thereby tacitly expressed its willingness to withdraw.

The Provincial Court of Valencia, 7th section, in Case 9 July 2019 nº 299/2019 It fixed a case “mutual consent” an franchise agreement.  Time after signing defaults and disagreements were produced by both contracting parties that led to terminate the contract by tacit acceptance of both parties. It was about one termination of the contract by mutual consent: acts of the parties showed their willingness to end the relationship. The main consequence of this form of termination of contracts was mutual restitution of benefits, by applying the art. 1124 and 1303 our CC.

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 24 November 2011, Mediterranean Medicine and aesthetics, SL. (MDME) He signed franchiser as a franchise contract with mercantile AVANZA ESTÉTICA GANDÍA S.L..

The contract ended (clause 4) in November 2021.

Clause 20.7 of that contract provided that neither party could bring an action against the contract after more than 2 years since the last payment occurred, or cause or default.

While he franchise agreement was in force, the franchisee agreed not to compete with the franchisor. It is prohibiting exploitation, directly or indirectly, activity in a similar or identical to that of the franchised.

13th clause added that, during the period 2 years from the termination or resolution, the franchisee could continue to exercise the same activity in the establishment where the activity was developed.

The 31 March 2016 AVANZA ESTÉTICA GANDÍA S.L.. (the franchised) He referred to the franchiser a burofax in stating its intention to terminate the franchise agreement. Alleged lack of services and breach of the franchise agreement as a reason for not paying royalties.

The 19 April 2016 the franchiser sent a burofax by stating that from the 6 April 2016 He had been suspended access to computer software to the default state.

the franchiser (MDME) He filed a lawsuit requesting the declaration of invalidity of contract termination by burofax. It also requested payment of unpaid royalties and accrued amount 24.412,64 euros and sentenced to finalize outstanding treatments totaling run 103.745,91 euros. Also to compliance with other obligations under the contract and in particular the post-contractual prohibition of competition.

Primera Instancia

The 27 November 2018 el Juzgado de Primera Instancia nº 3 Llíria gave judgment by dismissing the lawsuit filed by Mediterranean Medicine and aesthetics, SL., considering that the action brought by the plaintiff had expired for a period of 2 years established in the franchise agreement itself.

Provincial Court

Instance judgment against the plaintiff appealed, alleging an improper evaluation of the evidence it did not consider the contract was terminated by the burofax referred. The burofax was a communication from the defendant that at no time was considered by the appellant as a Formal and justified resolution to the contractual conditions. Therefore, there had been no lapse within action.

Second, He alleged lack of consistency of the judgment because it had not evaluated the claim on the prohibition of unfair competition.

The 9 July 2019 7th Section of the Provincial Court of Valencia handed down its judgment No 299/2019 estimating part the use.

First, Audience, in relation to the franchise agreement, Judgment cited the Supreme Court 21 December 2005, by which:

The franchise ... lacks regulation in our law although they refer to the various franchise provisions (…) The sentence 27 September 1996, whose doctrine is essentially reproduced in the judgment of 30 April 1998 , qualifies the franchise agreement atypical; includes a definition of the doctrine (as “one that takes place between two legal parties and economically independent, whereby one -franquiciador- grants to the other -franquiciado- the right to use under certain controlled conditions, and for a time and delimited area, a technique in industrial or commercial activity or providing services franchisee, upon receipt by it of a payment.

Also, Judgment of the ECJ of 28 January 1996 (Pronuptia case) determined that "...pursuant character of atypical contract, states that shall be governed, first, by the will of the parties embodied in clauses and specific requirements…Y for if there were gaps, to interpret its contents, It is necessary to use typical figures related to such atypical contracts consensual relationship.

So, sobre el breach of contract, She hearing referred to art. 1101 the Civil Code in which the breach was of such entity to prevent the use of the thing. It would then be before a "for each other " because of an inability of the object and not a mere inaccuracy in compliance.

Remain applicable to that specific rules serious breach of arts. 336 and 342 of the Commercial Code in connection with art. 1490 CC.

Regarding termination of contracts, the Court noted that the art had to be. 1124 Civil Code.

In this case, nos encontramos ante un “mutual consent”: the resolution has been spoiled and tactically accepted by both parties. The legal consequence is the extinction of the effects of the contract and the replacement of things to their previous state in terms of art. 1303 CC (SSTS 24-7-1999 and 3-5-1999). All safe from what the parties have agreed themselves.

So, the Supreme Court ruling of 10 March 1950, 15 April 1959, 8 June 1972, inter, noted that "when the contract rescinded what is unique tract and has been partly fulfilled by the parties it must start from the principle that these should be returned mutually benefit each of them has received from the other, This does not affect what about if any Contracting proved possible to agree freely self-regulate their interests, since there will be preferably to such agreements. Accordingly, if partial compliance and resolutive will both contracting shaking is defined mutual adveran dissent, it is not necessary to determine if you attend a capricious withdrawal of part or conversely if any justified by a breach by the respondent, that said adjudicative powers under Art. 1124 C.C imposes on each party the repeated need for restituted in their respective performance so it can never be applicable penal clause stipulated.

The mutual consent is defined as a contract or rescission cancelatorio. And, as a valid contract as the arts. 1255 ff. CC, It must meet the essential elements of legal transactions of that nature (art. 1261 CC).

STS 4 October 2010 sobre el mutual consent, recognized him as a cause of extinction of obligations without regulation in the art. 1156 the CC but if covered by the case law and doctrine. So, “extintivo that consensual and legal business can be reached not only through express statements, but also by unspoken statements or conclusive acts.

Thus, the Court cited the STS 12 March 2013 its similarity to the case prosecuted. It was because of contractual breaches both sides They are denoting the mutual willingness of withdrawal. the restitution of the delivered by each party with its fruits and interest imposed as a solution, similar to the invalidity of art obligations mode. 1303 CC.

Reciprocal and mutual non-compliance was critical of the termination of the contract and settlement of existing contractual relationships through mutual restitution of the services provided.

Therefore, usually meant, with character from then, return to pre-existing legal status as if the business had not concluded. This meant the obligation to repay what each party had received from the other by reason of obligational link (SSTS 29 April, 10 July 1998, 24 July 23 December 1999).

The SAP of Alicante 7 June 2017 He determined that: “in our legal system, the resolution lacks specific regulation ... but creating similar situations (art. 4.1 CC) there is no reason not to apply by analogy the provisions for voidable in the arts. 1303, 1307 and 1308 CC, the resolution of the contract to which it refers the case; the same solution is reached by applying the art .... 1124”.

Failings, it was proven that the franchiser suspended access to computer software of the franchised. And, that after this fact no more communications or advice consisted between the parties. Therefore, the contract should be understood resolved by mutual disagreement.

It was not necessary to make accurate determination of whether a capricious withdrawal was attending a party or a breach justified.

On expiration, the Court determined that it did not begin on the date of termination of the contract, but, by application of the clause 20.7, neither party could bring an action "after more than 2 years from the occurrence of the cause, or in the event of default ... from the date of the last payment ". The demand was the date 30 December 2016, debts must be paid from December 2014 until December 2016.

Ultimately, the Court partially upheld the appeal and overturned the first instance judgment. Instead, partially upheld the lawsuit filed by the franchiser and declared solved the franchise agreement by mutual dissent. He condemned the franchised to the payment of unpaid royalties from December 2014 (17.0009,53 euros) plus interest of law 3/2004.


The mutual consent It is a cause for termination of contracts by the voluntary agreement, even tacit. The parties supersede a contract valid. Its main consequence is the reciprocal restitution of benefits,  to return to the pre-existing legal status as if the business had not been.

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