Section 407.400

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 1998, 2 histories   

  407.400.  Definitions. — As used in sections 407.400 to 407.420:

  (1)  "Franchise" means a written or oral arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise, including but not limited to a commercial relationship of definite duration or continuing indefinite duration, between a "wholesaler", such wholesaler being a person as defined in this section, licensed pursuant to the provisions of chapter 311 to sell at wholesale, intoxicating liquor, as defined in section 311.020, to retailers, duly licensed in this state, and a "supplier", being a person engaged in the business as a manufacturer, distiller, rectifier or out-of-state solicitor whose brands of intoxicating liquor are distributed through duly licensed wholesalers in this state, and wherein a wholesaler is granted the right to offer, sell, and distribute within this state or any designated area thereof such of the supplier's brands of intoxicating liquor, or all of them, as may be specified; except that, the term "franchise" shall not apply to persons engaged in sales from warehouses or like places of storage, other than wholesalers as above described, leased departments of retail stores, places of original manufacture, nor shall the term "franchise" apply to a commercial relationship that does not contemplate the establishment or maintenance of a place of business within the state of Missouri.  As used herein "place of business" means a fixed, geographical location at which goods, products or services are displayed or demonstrated for sale;

  (2)  The term "goods" includes any personal property, real property, or any combination thereof;

  (3)  The term "other property" includes a franchise, license distributorship, or other similar right, privilege, or interest;

  (4)  The term "person" includes an individual, corporation, trust, estate, partnership, unincorporated association, or any other legal or commercial entity;

  (5)  The term "pyramid sales scheme" includes any plan or operation for the sale or distribution of goods, services or other property wherein a person for a consideration acquires the opportunity to receive a pecuniary benefit, which is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers, and is based upon the inducement of additional persons, by himself or herself or others, regardless of number, to participate in the same plan or operation; and

  (6)  The term "sale or distribution" includes the acts of leasing, renting or consigning.

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(L. 1974 H.B. 1132 § 1, A.L. 1975 H.B. 810 § 1, A.L. 1998 H.B. 957 & 1063)

(1978) Amendment changing definition of franchise to include wholesalers and suppliers or distillers of spirituous liquors during passage of bill did not violate constitutional requirements that bill contain no more than one subject and that it be clearly expressed in the title, and that bill was so amended in its passage as to change its original purpose.  Brown-Forman Distillers Corp. v. McHenry (Mo.), 556 S.W.2d 194.

(1980) Sale of club memberships not exempt from statute prohibiting pyramid sales schemes on basis that operation was contingent on volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purpose of resale where what was sold was place on club chart, with opportunity to move to higher position. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.

(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes, is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.

(1986) A "community of interest" is found, for purposes of this section, where either (1) the franchisor benefits from the franchisee's marketing of the franchisor's product or service, or (2) the franchisee benefits from the franchisor's marketing of the product or service. C&J Delivery, Inc. v. Emery Air Freight Corp., 647 F.Supp. 867 (E.D. Mo.).