Da validade da cláusula de não concorrência nos contratos de franquia

Abstract

As the franchise agreement became of a great economic importance and the tendency is to expand over the next years, we sought, in the present work, to address important issues such as civil liability for breach of contract as well as the non-competition clause and jurisprudential debate about the validity of their inclusion in franchise contracts. The franchising agreement is governed by the brazilian Law nº 8.955/54, article 2º. It is a bilateral, synallagmatic, consensual and typical contract, performed over time, formal, commutative and strictly personal. There are several types of franchise operations, however the most used classification for this is industrial or manufacturing franchise, trade or distribution and service. This type of contract establishes many obligations and rights to the franchisee and the franchisor and one of the facts to cause contract termination occurs when one party fails to fulfill the obligations expressly assumed. Moreover, the contract terminates by the expiration of the arrangements between the parties, as well as at any time by the mutual will of the parties. The main objective of this work is to analyze the validity or not of the noncompetition clause established in these types of contract, however, in spite of being common, this is not mandatory, and the Franchise Law in its Article 3 lists some mandatory clauses which must be established in these contracts, such as, the value of the initial membership fee, the franchise fee and the deposit to this operation, the territory delimitation, contract term and termination, among others