Does Ben Jerrys' right to transfer the agreement depend on the operator's consent?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
14.1 BEN & JERRY'S shall have the right to transfer or assign this Agreement and all or any part of its rights or obligations herein to any person or legal entity, and any designated assignee of BEN & JERRY'S shall become solely responsible for all transferred or assigned obligations of BEN & JERRY'S under this Agreement from the date of such transfer or assignment.
14.2 OPERATOR understands and acknowledges that BEN & JERRY'S has granted this franchise in reliance on OPERATOR's (or, if OPERATOR is a corporation, partnership or limited liability company, its principals') business skill, financial capacity, and personal character.
Accordingly, neither OPERATOR, nor any individual, partnership, corporation, limited liability company, or other legal entity which directly or indirectly owns any interest in OPERATOR or in the Scoop Shop shall sell, assign, transfer, convey, pledge, encumber, merge, or give (collectively, "transfer") away any direct or indirect interest in OPERATOR (including any direct or indirect interest in a corporate or partnership OPERATOR) in the Scoop Shop, or in all or substantially all of the assets of the Scoop Shop or the business franchised hereunder, without the prior written consent of BEN & JERRY'S.
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys' 2025 Franchise Disclosure Document, Ben Jerrys has the right to transfer or assign the Franchise Agreement without requiring the operator's consent. Section 14.1 explicitly states that Ben Jerrys can transfer the agreement and its obligations to any person or legal entity. This means a prospective franchisee should be aware that Ben Jerrys can sell the franchise system or assign its rights to another company without needing the franchisee's approval.
However, the franchisee (referred to as "OPERATOR" in the FDD) does need to obtain prior written consent from Ben & Jerry's to transfer any direct or indirect interest in the franchise. Ben Jerrys' consent is required when the franchisee wants to sell, assign, transfer, convey, pledge, encumber, merge, or give away any interest in the franchise. This protects Ben Jerrys' interests by ensuring they have control over who becomes a franchisee within their system.
In practice, this means that while Ben Jerrys can freely transfer the agreement, the franchisee faces restrictions on transferring their interest in the franchise. The franchisee must provide written notice to Ben Jerrys at least 45 days before any proposed transfer and Ben Jerrys has the right to review the proposed transfer and communicate with the potential transferee. Ben Jerrys can also set conditions for approval, such as requiring the franchisee to resolve any outstanding obligations or execute a general release of claims. This difference in transfer rights highlights the power dynamic between franchisor and franchisee.