CONTRATO DE FRANQUIA - DIREITO EMPRESARIAL I

Summary

Franchising is a strategic business model where a franchisor grants a franchisee the right to use its brand, patents, and business systems in exchange for royalties. The franchise agreement outlines the rights and obligations of both parties, including training, technology, and marketing support from the franchisor, and operational duties from the franchisee. The contract also includes clauses on territory, intellectual property, advertising, and dispute resolution. Legally, franchise agreements are considered adhesion contracts and must follow strict formalities. The franchisee must understand their responsibilities and rights before signing, ensuring a mutually beneficial partnership.

Takeaways

• 😀 Franchising is a business model where the franchisor grants the franchisee the right to use their brand, technology, and systems in exchange for investment and ongoing royalties.
• 😀 The franchise agreement outlines the rights and obligations of both the franchisor and franchisee, ensuring a clear operational framework.
• 😀 Franchisees must receive the Franchise Disclosure Document (COF) at least 10 days before signing the contract, which details essential information about the business relationship.
• 😀 The contract typically includes clauses on territory rights, intellectual property usage, support, training, marketing, and termination conditions.
• 😀 The franchisor’s obligations include providing ongoing training, technology, advertising, and ensuring franchisee compliance with brand standards.
• 😀 Franchisees have the right to receive support from the franchisor, maintain operational autonomy, and are obligated to pay royalties and adhere to the franchise guidelines.
• 😀 The franchise agreement is typically a contract of adhesion, with standardized terms that the franchisee must accept, though arbitration clauses require explicit written consent.
• 😀 Brazilian Law 13.966 of 2019 regulates franchise contracts and mandates transparency and fairness in franchisor-franchisee relationships.
• 😀 Franchise contracts are considered bilateral, consensual, formal, and continuing, and must comply with specific legal structures to be valid.
• 😀 Jurisprudential rulings clarify that arbitration clauses in franchise contracts are enforceable only if the franchisee explicitly agrees in writing or in a special document.
• 😀 Franchising is primarily a business relationship aimed at stimulating economic activity, not a consumer relationship, as confirmed by Brazilian legal interpretations.

Q & A

What is franchising and what does it involve?

Franchising is a business strategy where the franchisor, the owner of a brand, grants the franchisee the right to use their brand, patents, infrastructure, and to distribute exclusive or semi-exclusive products and services. The franchisee invests and operates the franchise, paying a portion of their earnings to the franchisor in the form of royalties.

What are the essential requirements for a franchise agreement?

A franchise agreement must include a franchise offering circular, which the franchisee must receive at least 10 days before signing the contract. The agreement outlines the business terms, technical tools, systems, and the legal and operational conditions.

What are the roles and responsibilities of the franchisor?

The franchisor's responsibilities include providing training, technology, advertising, and publicity support, conducting research, and supervising the franchisee's operations. They also ensure that franchisees comply with agreed-upon terms and provide necessary assistance for business development.

What rights does the franchisee have in a franchise system?

The franchisee has the right to receive support from the franchisor, have autonomy in hiring employees, and must receive the franchise offering circular within the required timeframe. Additionally, the franchisee has the right to run their business according to the guidelines provided.

What obligations does the franchisee have in a franchise system?

The franchisee is obligated to comply with the terms of the franchise offering circular, report business progress to the franchisor, pay necessary fees, and cover the operational costs of their franchise unit.

What are the common clauses included in a franchise contract?

Common clauses include the general vision of the relationship, contract duration, fees, assigned territory, training, intellectual property use, advertising obligations, insurance requirements, default and breach terms, dispute resolution, and franchise transfer rights.

What is the legal nature of a franchise agreement?

A franchise agreement is considered a typical, consensual, bilateral, onerous, and formal contract. Although it is formed through an adhesion contract, it is not regarded as a consumer relationship but as an economic fostering relationship that stimulates entrepreneurial activity.

How does the Brazilian legal system treat franchise agreements?

According to the Brazilian STJ (Superior Court of Justice), franchise agreements are seen as economic fostering relationships. The contracts are typically adhesion contracts, though not characterized as consumer contracts. The court also emphasizes that specific formalities must be followed for clauses like arbitration clauses to be valid.

What does the 2019 law (Law 13.966) outline about franchise agreements?

Law 13.966 of 2019 provides formalities for franchise agreements, including the mandatory provision of a franchise offering circular, the establishment of clear terms between franchisors and franchisees, and specific guidelines for the contract’s creation and execution.

What is the role of the arbitration clause in franchise contracts according to the STJ?

The STJ has ruled that in franchise contracts, arbitration clauses are enforceable if explicitly agreed upon by the parties in writing, including a special acknowledgment of the clause. If such conditions are not met, the clause may be declared invalid.