“Absence of proof is not proof of absence“[1]:
the maxim of the author of Jurassic Parc takes on its full meaning in the context of a dispute between a franchisor and his former franchisee[2].
In this case, a franchisor in the personal services sector was (as is often the case) accused of the worst evils: misleading promises, limited know-how, lack of follow-up and assistance, inadequate communication and poor network results.
However, the Paris Court of Appeal was not convinced, considering that :
- the franchisee had received substantial initial training (50 days),
- the franchisor had visited the franchisee and recommended an action plan,
- the franchisor had established partnerships with major customers,
- the franchisee did not demonstrate the alleged lack of network performance, the number of network branches having risen from 17 to 80 between 2010 and 2022.
The judges did not limit themselves to the franchisee’s allegations: they noted the franchisee’s failure to demonstrate the reality of his allegations.
This ruling is yet another reminder of the need for franchisors to anticipate potential litigation, and to provide proof that they are meeting the requirements expected of them.
This means keeping records of training sessions, visits and action plans, so as to document the transmission of know-how, the assistance provided and the franchisee’s satisfaction.
Paper does not refuse ink, and sometimes saves certain networks!
[1] Michael Crichton
[2] Paris Court of Appeal, Pôle 5, chamber 4, June 28 2023, n°21/22164