Marriott Corp Sample Clauses

Marriott Corp. Bus. Franchise Guide (CCH) ¶ 9100 (E.D. Wis. 1988), the plaintiff, a franchisee, attempted to prevent Marriott Corp. from assigning its rights and interests under its “Big Boy” franchise agreements to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Restaurants, one of the largest franchisees in the “Big Boy” system. The franchisee argued that the franchise agreements, which were silent on the issue of transferability by the franchisor, actually were personal services contracts that, under common law, could not be assigned without the franchisee’s consent. The court rejected this argument, noting the general rule that the duties of a corporation are delegable because the parties typically do not contemplate personal performance by particular individuals within the corporation. Unless a franchisee can demonstrate a substantial interest in having the original franchisor, rather than the assignee, perform under the contract, the court concluded that an assignment is typically valid without the franchisee’s consent. The court found no evidence that the assignee would be any less capable than Marriott Corp. to perform complete, competent service for the franchisees. There is at least one case, however, where the subject franchise agreement appeared to explicitly authorize the sale, transfer, or assignment of the franchise agreement in question, but franchisees still invoked the amorphous “implied covenant of good faith and fair dealing” in an effort to have the judiciary substitute notions of “fairness” for what the contract actually said. In ▇.▇. ▇▇▇▇▇▇ Marble & Tile Inc. v. Union Carbide Marble Care, Inc., et al., Bus. Franchise Guide (CCH) ¶ 10,523 (Sup. Ct., N.Y. County, N.Y. 1994), the court denied a motion to dismiss a franchisee’s claim under the “implied covenant” of good faith and fair dealing challenging the franchisor’s sale of its franchise system to a third party even in the face of clear franchise agreement language specifically authorizing such a sale. While the court observed that the franchisor had right to sell out, the court declined to grant the motion for dismissal because it concluded that an “implied covenant” inquiry was appropriate regarding the franchisee’s contention that “(Union Carbide Marble Care) sold the system to an entity with no experience as a franchisor, with no reputation, recognition or renown in the marble or stone care business…” We believe, but cannot guarantee, that the above-cited ▇.▇. ▇▇▇▇▇▇ decision is aberrational and unsupported by other judicial ...