On what basis can Benjamin Franklin Plumbing exercise its rights and discretion?
Benjamin_Franklin_Plumbing Franchise · 2025 FDDAnswer from 2025 FDD Document
Except as otherwise expressly provided in this Agreement, whenever we exercise a right and/or discretion to take or withhold an action, we can make our decision or exercise our discretion based on our judgment of what is in the best interests of the Brand at the time, even though (a) there may have been alternative decisions or actions that could have been taken; (b) our decision or the action taken promotes our own financial interest; or (c) our decision or the action may apply differently to different franchisees.
In the absence of an applicable statute, we will have no liability to you for any such decision or action.
If applicable law implies a duty of good faith and fair dealing in this Agreement, we and you agree that
the duty does not encompass any rights or obligations that are inconsistent with a fair construction of the terms of this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 88–312)
What This Means (2025 FDD)
According to the 2025 FDD, Benjamin Franklin Plumbing can exercise its rights and discretion based on its judgment of what is in the best interests of the brand. This is detailed in section 22.9 of the franchise agreement, which states that decisions can be made even if alternative actions were possible, the decision benefits Benjamin Franklin Plumbing's financial interests, or the decision affects franchisees differently. This clause applies unless explicitly stated otherwise in the agreement.
This section of the FDD also clarifies that Benjamin Franklin Plumbing will generally not be liable for its decisions or actions made under this clause, provided there isn't a conflicting statute. Furthermore, if any applicable law implies a duty of good faith and fair dealing, both Benjamin Franklin Plumbing and the franchisee agree that this duty will not override the explicit terms of the franchise agreement.
In practical terms, this means that Benjamin Franklin Plumbing has significant latitude in making decisions that could impact franchisees. While this discretion is intended to serve the best interests of the overall brand, it also allows Benjamin Franklin Plumbing to prioritize its own financial interests and potentially treat different franchisees differently. Prospective franchisees should carefully consider this clause and understand that their individual circumstances may not always be the primary factor in Benjamin Franklin Plumbing's decision-making process. It is important to seek legal counsel to fully understand the implications of this clause before entering into a franchise agreement.