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Kahlo Jeep Chrysler Dodge of Knightstown10/12/2005
stion of the franchisee's termination claim in any detail because it and we had concluded, improperly, that the entire franchise agreement was void for an unrelated reason. Therefore, our supreme court also declined to address the issue in detail, noting that the parties had not briefed it. See Ellenstein, 669 N.E.2d at 139. Ellenstein is of little value in deciding the issue presented here.
We do not doubt that the Act was passed with the intention of providing franchisees with greater protection from franchisor abuse than otherwise would be available under existing common law governing contract formation. Under the common law, for instance, it is " undamental contract law that original contracts may provide for modification. A contractual provision so changed is as voluntary and consensual as the original contract." Kuehl v. Terre Haute First Nat'l Bank, 436 N.E.2d 1160, 1162 (Ind. Ct. App. 1982). The Act generally prohibits such provisions that would benefit a franchisor, but it also states that any violation of the Act must be challenged in court within two years of the violation, if it is to be challenged at all.
We keep in mind that " hen the legislature enacts a statute in derogation of the common law, this Court presumes that the legislature is aware of the common law, and does not intend to make any change therein beyond what it declares either in express terms or by unmistakable implication." Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10 (Ind. 1993). Section 23-2-2.7-1(3) is in derogation of common law, which permits contracts to contain modification provisions. The two-year statute of limitations in the Act appears to represent a clear policy choice by the legislature that although it intended to abrogate the common law of contracts in certain ways for the benefit of franchisees, it also placed the burden on franchisees to challenge any facially improper franchise contract provision within two years of the contract's formation. As with most legislation, this appears to represent a balancing of competing interests. The interests here are those of franchisees to be treated fairly by large corporations and of franchisors to rely on the validity of their contracts when they have gone unchallenged for a long period of time.
We also disagree with the Dealers that it would be absurd not to allow franchisees to sue a franchisor for substantially modifying a contract pursuant to a clear provision allowing such modifications that has been in effect for more than two years. One of the key purposes of statutes of limitation is to encourage the prompt presentation of claims. Olcott Int'l & Co., Inc. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1074 (Ind. Ct. App. 2003), trans. denied. As noted, without the Act there would be nothing illegal in a contract provision such as existed here. The legislature could reasonably require franchisees to exercise promptly their right to challenge such a provision or else the ordinary common law upholding the validity of such provisions would apply. Additionally, if no modification provision existed in a franchise contract, any actual unilateral attempt to modify the contract without the franchisee's consent would be invalid in any event and, thus, could be challenged by the franchisee under common law principles. See Stelko Elec., Inc. v. Taylor Cmty. Sch. Bldg. Corp., 826 N.E.2d 152, 159 (Ind. Ct. App. 2005).
We have not been directed to any other state that has a statute flatly prohibiting a franchise agreement from containing a provision that allows unilateral modification by the franchisor. In fact, such provisions seem to be generally acceptable. The editors of American Jurisprudence specifically advise: "A franchisor
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