WAITING FOR GODOT OR WHEN AND WHEN THE DRAFT CIVIL CODE WILL BE ADOPTED (IMPORTANT FOR THE LAW REGULATION OF THE FRANCHISING AGREEMENT)

Strahinja Miljković, Ph.D. Associate professor /University of Priština in Kosovska Mitrovica, Faculty of Law

Abstract: Back in 2006. year with the task of codifying the matter of civil law, the Commission for drafting the Civil Code of the Republic of Serbia was established. The first book of the Civil Code was completed in 2007. year and made available to the public. From 2007. year until today (primarily work was done on amendments to the working versions), which is 14 years, not much progress has been made in the effort to adopt and enter into force the Civil Code. However, although shyly, and later with more courage, the working versions of the code envisage the regulation of a new and specific agreement, the franchise agreement. Listening to the needs of the market, as well as the need to introduce this type of business into legal frameworks, editors of the Civil Code (now the Draft Civil Code) for the first time legally standardise a franchise agreement. It should be noted that legal standardisation of franchising agreements has significant advantages in terms of legal transactions and contracting parties. However, although there is a strong intention, it should be noted that there are some shortcomings in legal standardisation of the franchising agreement. The shortcomings observed in the standardisation of the franchising agreement, and especially in circumstances where the franchising agreement is unknown to much of the legal theory, business and case law of the Republic of Serbia create the feeling that this business was approached in a superficial and secular manner without a deeper analytical approach, solutions provided in the legal acts and case law of countries with developed franchising business. The shortcomings of the Draft Civil Code of the Republic of Serbia in the part related to legal standardisation of franchising agreements that could be brought to the attention are related to: a) the concept of contracting parties; b) the subject matter of the agreement; c) specific obligations (e.g. obligation of the franchisee to apply the business concept of franchise network in an independent business); d) use of legal implants without explaining their content (e.g. goodwill), etc. The author points out the shortcomings of legal standardisation of the franchise agreement in the Draft Civil Code and the possible solutions. However, what we can state is that for now the adoption of the Draft Civil Code has all the characteristics of S. Beckettʼs play Waiting for Godot.

Keywords: franchising, franchisor, franchisee, franchising agreement, Draft Civil Code, sub-franchising, goodwill.