Concept and historical background of franchise contract and comparing it with commercial agency

Document Type : Original Article

Authors

1 Associate Professor of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

2 Assistant Professor, Department of Private Law, Behbahan Branch, Islamic Azad University, Behbahan, Iran.

3 PhD student in private law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Abstract

In spite of similarities between franchise as a contract and agency, there are differences between them which have theoretical and practical aspects. In this paper we are discussing this similarities and differences from a comparative perspective. In many of countries, the commercial agency has regulated but the franchise contract has not this base. Because of this, using statutes about agency for resolving or analyze of problems arising from or for franchise is inevitable. This practice could endanger the rights of the parties of franchise contract. Among other things, the relationship between the franchisee and the original is not a fiduciary relationship. The franchisee does not act on behalf of the franchisor and has the right to exercise any proprietary possessions. In addition, the subject matter, obligations, degree of independence and responsibility towards third parties are different in these two contracts. In fact, the franchise contract is not compatible with the commercial agency contract and has its own nature and effects.

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References

  1. Ahsani Afrooz, Mohammad (2012), technology transfer contract, Dadgstar Publishing House, Tehran. (In Persian)
  2. Amini, Mansour and Abbasi, Leila (2017), The Nature of Franchise Contract and Its Types, Law Studies, No. 20, Spring. (In Persian)
  3. Asbill, Dennis M (2001), Fundamentals of International Franchising, American Bar Association, USA.
  4. Babapour, Mohammad (2004), History of Franchising, Hoza and University Magazine, Year 11, Number 44. (In Persian)
  5. Bagharabadi, Faramarz (2009), International Franchise Agreements and the Position of these Agreements in Iranian Law, Doctoral Dissertation, University of Tehran (Qom Campus). (In Persian)
  6. Beatson, Jack (1998), Anson’s Law of Contract, Oxford University Press, 27th Edition, UK.
  7. Blair, Roger D. & Lafontaine, Francine (2005), The Economices of Franchising, Cambridge Press, England.
  8. Campbell, Dennis (2008), International Agency and Distribution Law, Vol. 2, UK, Yorkhill Law Publishing.
  9. Cavico, Frank, J (2006), Covenant of Good Faith And Fair Dealing in The Franchise Business Relationship, Barry Law Review , Vol. 6.
  10. Chitty, Joseph (1999), The Law of Contract: Specific Contracts, Vol. 2, 28th edition, Sweat & Maxwell, UK.
  11. Coghill, Ken; Sampford, Charles & Smith, Tim (2012), Fiduciary Duty and the Atmospheric Trust, Ashgate Publishing Company, England.
  12. Commision Regulation (EEC) No 4087/88 of 30 November 1988 on the Application of Article 85 (3) of the Treaty to Categories of Franchise Agreements.
  13. Emerson, Robert, W (1993), Franchise Contract Clause And The Franchisor‘s Duty Of Care To Ward It’s Franchisees, North Carolina Law Review, Vol. 72.
  14. Emerson, Robert, W (1998), Franchise Termination: Legal Right and Practical Effect When Franchisees Claims the Franchise On Discriminates, American Business Law Journal, Vol. 35.
  15. Eskini, Rabia and Bagharabadi, Faramarz (2019), Basic Obligations of the Franchisee in International Franchise Contracts, Private Law Studies of Tehran University, Volume 41, Number 3, Mehr. (In Persian)
  16. EU Council Directive 86/653/EEC of 18 December 1986 on the Coordination of the laws of the Member States Relating to Self-Employed Commercial Agents.
  17. Garner, Bryan. A (2009), Black’s Law Dictionary, Ninth Edition, West Publishing, Thomson Reuters.
  18. Hajiani, Hadi (2006), Rights of Representation, Daneshnagar Publishing House, Tehran. (In Persian)
  19. Harold, Brown (1970-1971), Franchising--A Fiduciary Relationship, Tex. L. Review, Vol. 49.
  20. Jafari Langroudi, Mohammad Jafar (2012), Expanded on Legal Terminology, Volume 5, Ganj Danesh Publications, 2th ed. (In Persian)
  21. Karimi, Ayat (1378), problems of third party insurance (several proposed solutions), Insurance Industry, No. 53, Spring. (In Persian)
  22. Lafontaine, Francine & Blair, Roger, D (2008), The Evolution of Franchising and Franchise Contract: Evidence from the United State, Entrepreneurial Business Law Journal, Vol. 3:2.
  23. Manitoba Law Reform Commission, Consulation Paper on Franchise Legislation (2008), Asper Review of International Business & Trade Law, Vol. 8.
  24. Martijn, W. Hesselink; Jacobien, W. Rutgers; Odavia, Buene Diaz & Scotta, Monola (2006), Principle of European law Commercial Agency, Franchise and Distribution Contract, Vol. 2, European Law Publisher.
  25. Mendelsohn, Martin (2008), The Law And Franchising In The United Kingdom, Enterprenearial Business Law Journal, Vol. 3:2.
  26. Mesnooh, Christopher Joseph (1994), Law and Business in France (A Guide to French Commercial and CorporateLaw), Martinus Nijhoff Publisher.
  27. Mohaghegdamad, Mostafa and Manshizadeh Tehrani, Farzan (2009), Works of Indirect Representation in Iranian Law and European Law, Tehran University Law Quarterly, Volume 40, Number 101, Spring. (In Persian)
  28. Mohammadi, Sam; Mohsenzadeh, Ahmad Ali and Mohsenzadeh, Ali (2012), The Nature and Characteristics of Franchise Contract in Iranian Law, Journal of Medical Law, No. 2 (Special Issue on Intellectual Property Law), Winter. (In Persian)
  29. Naimi, Imran (1386), commercial agency, doctoral thesis, University of Tehran. (In Persian)
  30. Naimi, Imran (2011), commercial agency, Tehran University Law Quarterly, Volume 40, Number 1, Spring. (In Persian)
  31. Nejatzadegan, Hamid and Nejatzadegan, Saeed (2013), franchise agreement in the field of competition law, legal research journal of Shahid Beheshti University, number 65, spring. (In Persian)
  32. Safari, Mohsen and Mashhadian, Shahab (2009), Examining the nature of franchise contract in Iranian law, Tehran University Private Law Studies Report, Volume 40, Number 101, Serial Number 101, Special Issue, April. (In Persian)
  33. Samavati, Heshmatullah (1377), Laws of International Transactions (Theoretical and Applied), Ghoghnous Publications, Tehran. (In Persian)
  34. Shahbazinia, Morteza and Sajjadi, Seyed Kamal (2013), the obligation of the franchisor to provide correct and comprehensive information before concluding the franchise contract, Tehran University Private Law Studies Report, Volume 41, Number 3, Mehr. (In Persian)
  35. Wild, Ellis (2006), Webster’s New World Law Dictionary, Wiley Publishing.

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History

  • Receive Date: 31 May 2022
  • Revise Date: 24 July 2022
  • Accept Date: 24 September 2022

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