What are the restrictions on me, as a Franchisor, accepting deposit monies from an incoming Franchisee?
Answered by Robert Toth from Wisewould Mahony - Franchise Lawyers
I am a Franchisor and an existing Franchisee is selling their business. The Franchisee has given the buyer a copy of their existing Franchise Agreement and Disclosure Document. With the recent amendment to the Code, what are the restrictions on me, as a Franchisor, accepting deposit monies from the incoming Franchisee? The Code applies equally to transferring Franchisees as it does to any new Franchisee. This means that you can only accept non-refundable deposit monies from the incoming Franchisee after more than 14 days from giving the incoming Franchisee an updated copy of the Disclosure Document, the Code and a copy of the Franchise Agreement in the form in which it is to be executed. Allowing the incoming Franchisee to rely on the old documents given by the old Franchisee is not sufficient.
In the case of a transfer of a franchise, the “Franchise Agreement” may be a completely new agreement, or it may just be a short document to transfer the existing Franchise Agreement – either way, a copy of the document to be executed needs to be provided along with an updated Disclosure Document at least 14 days before the making of a non-refundable payment or the execution of the agreement.
Also that the cooling off period still applies, so any deposit must be refunded (less the Franchisor’s reasonable expenses) if the franchisee terminates the agreement within seven days of signing the agreement or paying the deposit.
In the case of a transfer of a franchise, the “Franchise Agreement” may be a completely new agreement, or it may just be a short document to transfer the existing Franchise Agreement – either way, a copy of the document to be executed needs to be provided along with an updated Disclosure Document at least 14 days before the making of a non-refundable payment or the execution of the agreement.
Also that the cooling off period still applies, so any deposit must be refunded (less the Franchisor’s reasonable expenses) if the franchisee terminates the agreement within seven days of signing the agreement or paying the deposit.
About Robert Toth
Robert Toth is the Franchise Partner at Wisewould Mahony - Franchise Lawyers. Robert Toth is an Accredited Business Law Specialist, a member of the International Franchise Lawyers Association (IFLA), a member of the Australian Institute of Company Directors.
You should always check independently that an ask an expert answer published on Franchise Business applies to your particular circumstances.
More Legal Advice from Robert Toth
I’m looking at purchasing a Franchise. Can I contact existing Franchisees to find out what they think of the Franchisor and the Franchise system?
The importance of research before taking on board a franchise ...
Should I buy a Franchise in my own individual name or through a company or trust?
When considering this question it is important to seek the appropriate ...
Why can’t I sue the Franchisor? – An insight into your franchisee’s rights and interests when attempting to exit your system.
For a variety of reasons Franchisees may have become disillusioned ...
As a Franchisor, can I force Franchisees to buy products from me, or from a particular third party supplier?
It is important to know your legal obligations before requiring ...
Contact Wisewould Mahony - Franchise Lawyers
Tel: 1300 421 405




