Written commercial agreement

Significant imbalance

Sudden termination of established relationships

Competition investigation – French law

Civil competition action

French competition law

Competition investigation – European law

European competition law

Vertical restraints

Distribution law

Liability for defective products

Consumer law

Prohibition of measures having equivalent effect

European business law

Corruption

Compliance

Economic law

Shareholders' agreements

Removal of company directors

Abuse of voting rights

Companies

Action for infringement (counterfeiting)

Rights conferred by the trademark

Patentability

Industrial property

Commercial rent review

Renewal of the commercial lease

Despecialization (change of use)

Commercial leases

Reform of contract law

Reform of the law of special contracts

Preliminary sales agreement

Obligation to deliver goods in conformity

Classification of the contract for services (contrat d'entreprise)

Effects of the agency agreement with respect to third parties

Business contracts

Ongoing contracts

Recovery claims

Court-approved transfer plan

Bankruptcy proceedings

Personal data breaches

White collar crime

Commercial law

500 Questions - Business Law

Article L. 145-18, para. 1, of the Commercial Code subjects full despecialization to several cumulative conditions, which must be established by the applicant . The examination of the exercise of a new and different activity must be conducted with regard to the economic situation  and the necessities of the rational organization of distribution, to which the new activity must respond . The activit …

Under what conditions can a lessee obtain full despecialization?

Despecialization can be full or partial. Full despecialization, governed by Articles L. 145-48 and following of the Commercial Code, allows the tenant to request authorization to conduct one or more activities that are different from those stated in the lease, when these activities are compatible with the purpose, characteristics, and location of the building or real estate complex (Art. L. 145-48, para. 1). Full or total despecialization, which results in a genuine change of activity and a transformation of the tenant's business, is distinct from partial despecialization, characterized by the addition of related or complementary activities to those provided for in the lease. Furthermore, the legislator has provided a specific form of despecialization for merchants wishing to exercise their right to retirement or receiving a disability pension: the transfer-despecialization.

What are the forms of despecialization?

Article L. 145-18, para. 1, of the Commercial Code subjects full despecialization to several cumulative conditions, which must be established by the applicant . The examination of the exercise of a new and different activity must be conducted with regard to the economic situation  and the necessities of the rational organization of distribution, to which the new activity must respond . The activities envisaged must be compatible with the purpose, characteristics, and location of the building , as well as its internal regulations .

Finally, Article L. 145-48, para. 2, prohibits the first tenant of premises included in a complex constituting a commercial unit defined by a construction program from invoking the right to change the business purpose for a period of nine years from the date of taking possession.

Advice: Ensure that the same business does not exist in the neighborhood.

The activity of "caterer" and that of "ice cream maker, tea room, and bakery-pastry-chocolatier" do not meet the needs of the rational organization of distribution when this type of business already exists in the neighborhood.

The conditions relating to the economic situation and the necessities of the rational organization of distribution being cumulative, it is up to the applicant for despecialization to demonstrate that they are met.

CA Bordeaux, 11 May 2016, LawLex202200000617JBJ.

The criterion of economic conditions is assessed with regard to the financial health of the tenant's activity. If the lack of profitability of the activity justifies the change of use, the vacating of the premises resulting solely from the tenant's choice does not in any way demonstrate that the dancing activity previously conducted there is no longer profitable.

CA Versailles, 5 March 2009, LawLex202200000889JBJ.

When there are already ten real estate agencies in the sector concerned, one of which is subject to a judicial liquidation decision and another to a judicial reorganization procedure, and the establishment of a new real estate agency does not meet the needs of a rational organization of distribution, the request for authorization for despecialization to conduct real estate agent activities in the rented premises must be rejected.

Cass. 3e civ., 4 November 1992, LawLex202300008810JBJ.

A tea room activity, particularly with the installation of an outdoor terrace, is incompatible with the purpose, characteristics, and location of the building in question, if only due to the risk of noise and odor pollution.

CA Bordeaux, 5 March 2008, LawLex202300008878JBJ.

Therefore, a change in the nature of the commercial activity, in a unit where the condominium regulations authorize the exercise of commerce, does not, by itself, imply a modification of the building's purpose and can be carried out freely, provided it does not infringe upon the rights of other co-owners or any contractual limitations justified by the building's purpose.

Cass. 3e civ., 10 December 1986, LawLex202200000589JBJ.

The lessee, who is considering a change of business activity, must submit a request to the lessor (Art. L. 145-49, para. 1, Commercial Code). This request must, under penalty of nullity, include an indication of the activities intended to be carried out. The tenant cannot merely use a general formula to describe the proposed activities . The request is made by extrajudicial act or by registered letter with acknowledgment of receipt. It must be notified to the creditors registered on the business assets, who may condition the change of activity on the safeguarding of their interests (Art. L. 145-49, para. 1, Commercial Code).

Upon receipt of the request, the lessor must, within one month, notify, by extrajudicial act or by registered letter with acknowledgment of receipt, the tenants to whom he has committed, by virtue of an exclusivity clause, not to lease neighboring premises for the purpose of conducting activities similar to those mentioned in the request (Art. L. 145-49, para. 2, Commercial Code). The latter are then required to state their position, under penalty of foreclosure, within one month following the notification.

When the lessee, who initially operates a general food business, requests from the lessor a full change of use to conduct an "all businesses except those causing noise and odor nuisances," this sole exclusion, without further details, does not allow for determining the nature of the activities they now intend to conduct and verifying if they are compatible with the purpose, characteristics, and location of the building.

CA Versailles, 30 October 2007, LawLex202300009214JBJ.

What form and content must the request for full despecialization have?

The lessor must, within three months of the request for despecialization, notify their acceptance, refusal, or the conditions to which they subordinate their agreement. Failing this, they are deemed to have accepted the despecialization . They may notify their response by extrajudicial act or by registered letter with acknowledgment of receipt.

The landlord's refusal must be justified . It may, in accordance with Article L. 145-53, para. 1, be based on the repossession of the premises at the expiration of the current three-year period, either pursuant to Articles L. 145-18 to L. 145-24, or with a view to carrying out work prescribed or authorized as part of an urban renewal or property restoration operation, provided that notice is given for this purpose. If these reasons are falsely invoked or if the landlord has not met the conditions that justified the rejection of the tenant's request, the landlord cannot enforce a new request for despecialization, except for serious and legitimate reasons, unless the failure to execute is not attributable to them.

In the event of the landlord's refusal, Article L. 145-52, para. 1, of the Commercial Code provides that the Judicial Court may authorize the total or partial transformation if this refusal is not justified by a serious and legitimate reason, such as non-compliance with the conditions listed in Article L. 145-48 . If the judge can authorize the change of activities despite the landlord's refusal, they must, however, do so in compliance with the contractual stipulations .

Advice: Do not choose an activity that is likely to cause  disturbances to the neighbourhood.

Operating a bar with live music is not in accordance with the intended use of the building, as the condominium bylaws expressly prohibit “any noise or disturbance, whether at night or during the day, of any kind whatsoever, that is likely to disturb the peace and quiet of the residents.”

The lessor, who did not respond to the lessee's request to operate in the premises, instead of the business of “leather and fur clothing,” as provided in the lease, that of “ready-to-wear, textile clothing articles and accessories, leather and imitation clothing, shoes, hats, and leather goods,” within the three-month period of Article L. 145-49 of the Commercial Code, is deemed to have accepted the requested full despecialization and cannot reproach the lessee for a breach of the lease's purpose clause.

CA Paris, 6 March 2013, LawLex202200000818JBJ.

The landlord's intention to comply with the co-ownership regulations constitutes a serious and legitimate reason to refuse the exercise of ancillary or complementary activities contrary to the purpose of the lease.

CA Toulouse, 13 April 2006, LawLex202200000887JBJ.

If the refusal by the lessor to the request for the addition of an activity is not inspired by a serious and legitimate reason, Article L. 145-52 of the Commercial Code allows for judicial authorization.

A court of appeal cannot authorize a change in the layout of the leased premises for the purpose of a complete change of the activity specified in the lease, when the lease stipulates that the lessee undertakes not to make any changes in the layout, demolitions, wall or vault openings, or constructions in the leased premises without the express written consent of the lessor.

Cass. civ. 3e, 24 June 1992, LawLex202200000588JBJ.

Can the lessor refuse full despecialization?

The change of activity may justify the payment by the tenant of compensation equal to the amount of the damage that the landlord estimates to suffer due to the despecialization (Art. L. 145-50, para. 1, Commercial Code).

The lessor may also, in return for the advantage provided, request at the time of the despecialization  the modification of the lease price without applying the provisions of Articles L. 145-37 to L. 145-39 relating to the rules for rent revision (Art. L. 145-50, para. 2, Commercial Code) . The modification of the rent price, pursuant to Article L. 145-50, paragraph 2, of the Commercial Code, requires that a full despecialization procedure has been followed .

If the lessor can request a rent modification, their request must occur at the time of the transformation, but above all, it must be the consideration for a full despecialization requested by the lessee and accepted by them.

CA Versailles, 12 March 1998, LawLex202300009118JBJ.

Since, in the event of a change of activity, the lessor may, in return for the advantage provided, request, at the time of the transformation, the modification of the rent price of the lease, a court of appeal cannot hold, in the context of a full despecialization, that the setting of the new rent can only be requested during the first triennial review following the notification referred to in Article L. 145-47 of the Commercial Code.

Cass. 3e civ., 24 June 1992, LawLex202200000588JBJ.

As long as premises have always been used for "all businesses except food," the bazaar activity conducted in the premises, replacing a furniture sales business, does not change their purpose as authorized by the lease and does not constitute a full change of use that the lessor can invoke to obtain the removal of the rent cap.

Does full despecialization justify the payment of compensation to the lessor and does it imply a modification of the rent amount?

The legislator has created a specific case of despecialization for merchants who wish to assert their retirement rights  or are beneficiaries of a disability pension (Art. L. 145-51 Commercial Code). They may, in accordance with Article L. 145-51, para. 1, of the Commercial Code, obtain the transfer-despecialization that allows them to transfer the lease to a purchaser of the business for the purpose of operating a new activity. The Commercial Code does not require total disability or an inability to engage in any professional activity . Only the tenant who has applied to benefit from their retirement rights or has been admitted to benefit from them can obtain the transfer-despecialization .

In principle, the tenant's intention to assign their lease is sufficient, without needing to sell their business or being required to present a candidate for its acquisition. However, the nature of the activities envisaged by the assignee must be compatible with the purpose, characteristics, and situation of the building (Art. L. 145-51, para. 2, Commercial Code) . Furthermore, while Article L. 145-51 authorizes the assignment in the cases it enumerates, it does not exempt the tenant from complying with other clauses of the lease, notably the obligation to operate and furnish the rented premises .

The lessee must notify, by extrajudicial act , the lessor, as well as the creditors on the business assets, of their intention to assign the lease, specifying the proposed price and the nature of the activities intended to be carried out. Upon receipt of the notification, the lessor has a two-month period to exercise a right of first refusal under the conditions set out in the extrajudicial act. If they oppose the change of activity, they must bring the matter before the Judicial Court within two months from the notification of the lease assignment. They may only invoke reasons related to the compatibility of the intended business with the purpose, characteristics, and location of the building, and the opposition must not in any case resemble an abuse of rights.

Advice: Ensure compliance with the non-compete clauses of the co-ownership regulations.

Any new business activity contemplated within the framework of the leasehold assignment that would directly compete with one of the building's businesses may be incompatible with the building's purpose if it contravenes the co-ownership regulations that govern the use of the commercial premises.

The fact that a wife operates another similar business alone does not entitle the lessor to refuse the transfer of the lease of which she is a co-lessee with her husband, who is the only one registered in the commercial register for the business operated on the premises and who has applied to benefit from his retirement rights.

Cass. civ. 3e, 6 February 2013, LawLex202200000620JBJ.

The admission of a partial disability pension, which is linked to the impossibility of exercising the professional activity of the beneficiary without preventing them from engaging in other activities, falls within the scope of Article L. 145-51 of the Commercial Code.

CA Montpellier, 3 September 2013, LawLex202300009360JBJ.

The option offered by Article L 145-51 of the Commercial Code is reserved solely for the tenant who has applied to benefit from their retirement rights or has been admitted to benefit from them.

CA Aix-en-Provence, 29 October 2015, LawLex202300009300JBJ.

The right to assign the lease can only be limited insofar as the new business would be incompatible with the purpose, characteristics, and location of the building.

Cass. 3e civ., 30 January 1991, LawLex202300009297JBJ.

The lessee who no longer engages in any commercial activity and who not only does not respond favorably to the summons to resume this activity but also cannot do so since they have been removed from the commercial register, has not fulfilled their obligations to constantly keep the rented premises furnished with furniture, objects, equipment, and merchandise.

Cass. civ. 3e, 2 October 1996, LawLex202300009359JBJ.

The notification of the assignment of the lease to the owner and to the registered creditors on the business assets, as provided by Article L.145-51 of the Commercial Code, must be done by extrajudicial act, which cannot be replaced by sending a registered letter with acknowledgment of receipt.

CA Colmar, 29 January 2007, LawLex202300009323JBJ.

In which cases is assignment with change of use available to the tenant?

Article L. 145-51 of the Commercial Code constitutes, according to case law, an autonomous text that excludes the application of provisions allowing derogation from the rule of capping and therefore does not allow a modification of the lease price . This autonomy aims to facilitate the lessee's transfer by maintaining the same price despite the change of activity. The regime set out in Article L. 145-51 of the Commercial Code therefore does not allow the lessor to monetize the consent given or the absence of enforcement to the proposed change of destination, contrary to partial (Art. L. 145-47 Commercial Code) or full despecialization (Art. L. 145-48 and L. 145-49 Commercial Code) .

Despecialization pursuant to Article L. 145-51 of the Commercial Code does not allow for a modification of the lease price, as the lessors have in no way contested the transfer-despecialization operation.

Paris, 18 September 2008, LawLex202300009380JBJ.

If the transfer of the commercial lease, when the lessee exercises their retirement rights, does not provide the lessor with the immediate possibility to monetize the consent given or the absence of enforcement to the intended change of use, this maintenance of the rent under previous conditions lasts for the remaining term of the lease, and does not prevent the lessor from invoking this change upon lease renewal, provided that the conditions for rent increase due to the change of use are met.

CA Douai, 25 March 2021, LawLex202200007789JBJ.

Does the assignment-despecialization allow for a modification of the rent amount?

The transfer of the leasehold right, under the conditions of Article L. 145-51 of the Commercial Code, does not deprive the lessor of the right to invoke, in support of their request for the determination of the rent of the renewed lease, the change of purpose that occurred during the expired lease .

The conditions imposed for any rent cap removal due to a change in use must, however, be met to obtain a rent adjustment to the rental value, namely the demonstration of the significant nature of this change, which is sufficient to justify the removal of the cap, without the need to determine whether this change had a favorable impact on the activity of the business in question .

It cannot be inferred from a landlord's non-exercise of their right of first refusal or from the absence of enforcement in court against the change of use, that they have waived the right to request, upon lease renewal, the removal of the rent cap.

Cass. 3e civ., 15 February 2023, LawLex202300003438JBJ.

The removal of the cap may occur upon renewal, in the event of a significant change in one of the elements of the rental value, where it is necessary to determine whether this change has had a favorable impact on the activity carried out by the lessee.

CA Paris, 20 May 2020, LawLex202300009381JBJ.

Can the lessor invoke a change of use in the event of an assignment-despecialization?

The lessee may add ancillary or complementary activities to the initial activity as provided in the lease (Art. L. 145-47, para. 1). Partial despecialization is subject to the sole condition that the new commercial activity, whose addition is contemplated, is ancillary or complementary. It is not necessary for it to be predominant over the initial activity. However, the ancillary or complementary activity must be sufficiently linked to the main activity.

The ancillary activity refers to one that presents a similarity, analogy, or dependency link with the products in question or the manufacturing methods . The complementary activity, which is ancillary in nature, consists of an activity that, without being intimately related to the activity authorized by the lease, complements it in a way that may promote its development without altering its nature, meaning the reasonable extension allowing the lessee a better exercise of the main activity to better defend against competition and to follow not only technical evolution but also commercial practices and customer expectations .

Advice: Select a business activity that constitutes a normal extension of the business, a specific aspect of its exploitation, or one provided for in the lease.

When the use constitutes a normal extension of the agreed-upon business, neither Article L. 145-47 nor Article L. 145-48 of the Commercial Code applies, as the tenant’s initiative does not exceed the legal requirements and constitutes only a minor adaptation.

The sale of grocery products and regional products is not similar, analogous, or dependent on the marketing activities of artisanal bakery and pastry products, as well as catering dishes and sandwiches prepared on site.

CA Caen, 13 September 2012, LawLex202200000669JBJ.

The sale of confectionery, chocolate, and ice cream is not ancillary to or complementary to the activity of a baker, even if the sale of these products is often carried out by bakers and the lease contains no restrictions on this point.

Cass. 3e civ., 16 January 1973, LawLex202200000674JBJ.

The activity of men's hairdressing constitutes an ancillary activity as long as it does not correspond to a new concept of the exercise of women's hairdressing, as provided in the lease, but rather to an extension of this activity.

CA Paris, 27 February 2013, LawLex202200001126JBJ.

Gardening would appear to be part of the evolution of uses concerning DIY activities, as all DIY stores today have gardening sections with accessories, and this activity is, moreover, mentioned in the DIY nomenclature issued by the Professional Federation of DIY Stores.

CA Paris, 10 February 2010, LawLex202200001127JBJ.

The activity of a fast food outlet is complementary to that of a restaurant insofar as it does not require significant modifications and targets the same clientele, which it aims to retain by providing this additional service.

Cass. 3e civ., 19 July 2000, LawLex202200000965JBJ.

The activity of a “friterie” cannot be considered a complementary activity to fast food insofar as it requires, for its execution, specific installation of the premises for ventilation and the evacuation of smoke and odors.

CA Paris, 28 February 2018, LawLex202200000670JBJ.

What constitutes an addition of a related or complementary activity that justifies partial despecialization?

If the lessee can, in principle, only conduct the activities listed in the commercial lease on the rented premises, they may nevertheless engage in certain activities that, while not expressly mentioned in the lease, are included in the contractual purpose as long as they naturally relate to the initial activity and its evolution according to commercial practices or usages. The addition of an included activity is exempt from the despecialization procedure and cannot lead to the uncapping of the rent of the renewed lease. Whether an activity is included or not falls under the sovereign assessment of the trial courts. Allowing customers to sit and consume is an activity included in that of a sandwich shop . The sale of tickets for access to the Palace of Versailles is included in that of a café, bar, tea room, restaurant, and sale of instant games by the Française des jeux . The included activity must be direct and necessary. A repair activity constitutes a new activity compared to that of manufacturing .

The fact, within the operation of a Turkish-style sandwich shop with a vertical spit, using a standardized preparation, of allowing customers to sit and consume on a plate, does not constitute an activity contrary to that of “fast food, take-out.”

CA Paris, 13 February 2008, LawLex202200001269JBJ.

The sale of tickets for access to the Palace of Versailles must be considered an activity included in the lease concerning premises used for “café, bar, tea room, restaurant, sale of instant games of the Française des jeux” as it is a service offered to their clientele by all the nearby bars and restaurants, and this activity provides a local service corresponding to the evolution of commercial local practices around the palace.

Cass. 3e civ., 16 September 2015, LawLex202200001099JBJ.

The activity of “leather goods repair” constitutes a new activity not included in that of manufacturing leather goods or selling clothing or gifts related to the initial activity of the lessee.

CA Paris, 14 February 2007, LawLex202200007447JBJ.

What does the concept of 'activity included in the lease' cover?

A lessee wishing to add ancillary or complementary activities to the activity provided for in the lease, must, in accordance with Article L. 145-47, para. 2, of the Commercial Code, “inform the owner of their intention by extrajudicial act or by registered letter with acknowledgment of receipt, indicating the activities whose exercise is envisaged” .

This formality serves as a formal notice to the owner to inform the lessee whether they intend to contest the connection or complementarity of the proposed activities (Art. L. 145-47, para. 2, Commercial Code). However, the fixed-date summons directly issued by the lessee does not constitute a formal notice to the lessor . The fact that the lease stipulates that the lessee cannot engage in any ancillary or complementary activity does not exempt them, if they wish to do so, from informing the lessor .

A lessee, who may add ancillary or complementary activities to the activity provided for in the lease, must inform the lessor of their intention, indicating the activities they plan to undertake.

Cass. 3e civ., 7 December 2004, LawLex202200001107JBJ.

A court of appeal cannot accept that the fixed-date summons directly served by the lessee constitutes a formal notice to the lessor to declare, within two months from the service of the extrajudicial act provided by law, under penalty of forfeiture, whether they contest the related or complementary nature of the intended activity.

Cass. 3e civ., 24 February 1976, LawLex202200001108JBJ.

If a clause in a lease stipulates that the authorized business in the rented premises is that of horse butchery and that the lessee cannot engage in any other non-ancillary or complementary activity, the latter, wishing to engage in activities they consider ancillary or complementary, is not exempt from informing the lessor, in accordance with the procedure provided by Article L. 145-47 of the Commercial Code, allowing them to contest the ancillary or complementary nature of the intended activities.

Cass. 3e civ., 25 February 1975, LawLex202200001110JBJ.

How can the lessee form a request for a change of business activity?

The notification by the lessee of a request for the addition of a related or complementary activity serves as a formal notice to the lessor to state within a period of two months, under penalty of forfeiture, whether they contest this characterization .

The lessor is not required to express their opposition in a particular form , nor to specify the reasons that determined it . Thus, the lessor may respond via a registered letter with acknowledgment of receipt or a simple letter. However, their opposition must be unequivocal . They can only contest the connection or complementarity to the exclusion of any other reason . Even if the lessor has not expressed their opposition, a passive attitude or mere tolerance  does not constitute acceptance.

Advice: Do not rely solely on the landlord's lack of response to the request for despecialization.

The landlord's consent or waiver of any recourse can only result from positive acts clearly manifesting their intent.

The extrajudicial act by which the lessee expresses their intention to add related or complementary activities to those provided for in the lease constitutes a formal notice to the lessor to indicate, within a period of two months under penalty of forfeiture, whether they contest the related or complementary nature of these activities.

Cass. 3e civ., 1 March 1995, LawLex202200001113JBJ.

The lessor, who must, within one month of the request addressed to them, indicate whether they contest the related or complementary nature of the new activities the lessee wishes to undertake, is not required to express their opposition in a particular form. The formal expression of their disagreement to the lessee, to whom they have granted the lease renewal, by opposing any extension or addition of other businesses or commercial activities, is sufficient.

Cass. 3e civ., 23 April 1974, LawLex202200001115JBJ.

The lessor is not required to express their opposition to the proposed extension of activity in a particular form or to specify the reasons that determined it.

Cass. 3e civ., 6 March 1973, LawLex202200001114JBJ.

The lessor, who is not required to justify their objection, must unequivocally express their opposition to the addition of the activity proposed by the lessee within the allotted time.

Cass. 3e civ., 9 February 2017, LawLex202200001116JBJ.

An exclusivity granted to another tenant in the same building cannot prevent the application of Article L. 145-47 of the Commercial Code, which allows the lessor to contest only the extensive or complementary nature of the activity envisaged by the tenant.

Cass. 3e civ., 1 February 1978, LawLex202200001118JBJ.

A lessee is not entitled to invoke a tacit agreement from the lessor, which cannot result from the latter's mere passive attitude, as the lessor has, on the contrary, shown opposition to the tenant's behavior as soon as it came to their attention.

Cass. 3e civ., 28 May 1997, LawLex202200000966JBJ.

The mere tolerance of the lessor, regarding an addition by the lessee of an activity to their initial activity, cannot constitute implicit authorization.

Cass. 3e civ., 26 November 1991, LawLex202200001106JBJ.

The fact that a lessee named their business "Supérette," without enforcement from their lessor, and the circumstance that the latter visited the business, are not sufficient to demonstrate that they tacitly accepted the extension to the purpose of the premises as provided in the lease.

CA Rennes, 23 November 2011, LawLex202200001140JBJ.

Can the lessor oppose a request for a change of activity?

In the event of a dispute by the lessor regarding the related or complementary nature of the activity envisaged by the lessee, the latter, pursuant to Article L. 145-47, para. 2, of the Commercial Code, may refer the matter to the Judicial Court within two years from the lessor's refusal, so that it may rule based in particular on commercial practices, which the trial court is required to investigate ex officio .

The connection or complementarity of new activities , as well as their authorization , fall under the sovereign power of assessment of the trial courts. A judgment that authorized the extension of activity being vested with provisional enforcement cannot be criticized for the lessee having started this new activity despite the appeal procedure .

A court of appeal cannot decide that the activity for which addition is requested is neither related nor complementary due to a lack of connection with the main activity without investigating what the commercial practices were in this matter.

Cass. 3e civ., 25 May 1972, LawLex202200000677JBJ.

The assessment by the judge of whether the new activities are related or complementary is sovereign, with Article L. 145-47 of the Commercial Code requiring only that the judge make a decision based in particular on commercial practices.

CA Bordeaux, 31 March 2010, LawLex202200001270JBJ.

Article L. 145-47 of the Commercial Code, which authorizes the lessee to add ancillary or complementary activities to the activity provided for in the lease, empowers the judge, in case of dispute, to authorize this ancillary or complementary activity based notably on the evolution of commercial practices.

A judgment that authorized the addition of a related or complementary activity to that registered in the lease, being subject to provisional enforcement, cannot be faulted against the lessee for having started this activity despite the appeal procedure.

CA Douai, 26 May 2011, LawLex202200000885JBJ.

Can partial despecialization be judicially authorized?

The lessee may only add a related or complementary business activity to that authorized by the lease if they have notified their intention to the lessor. Therefore, any extension of the use of the premises without prior authorization from the latter or, failing that, from the Judicial Court, constitutes a serious breach that may be sanctioned by rescission , whether contractually  or judicially , and the expulsion of the lessee , by the refusal to renew the lease without payment of eviction compensation , as well as by the payment of damages.

The extension of activity carried out by the lessee must be sufficiently serious to justify a termination . A sufficiently serious breach justifying, in particular, the refusal of renewal, is constituted by the lessee who has added an activity in violation of the lease clauses authorizing exclusively a single business, continuing to exercise the new activity despite formal notices to cease . Finally, rescission occurs automatically when the lease clearly prohibits any addition of activity, except by implementing the specific prior procedures provided by the Commercial Code, which sanction the breach of this obligation by rescission .

Any extension of the use of the premises without prior authorization from the lessor or, failing that, from the Court, constitutes a breach that may be sanctioned by the pronouncement of the termination of the lease or the acknowledgment of such termination through the operation of the termination clause.

Cass. 3e civ., 20 December 2000, LawLex202200001752JBJ.

When a lessee, after having offered for sale products prohibited by the lease, has not ceased this activity despite a formal notice invoking the termination clause, the lease is rescinded by the effect of this clause, and the lessee cannot claim foreclosure due to the lessor's failure to respond to their request for extension made after the formal notice.

Cass. 3e civ., 20 December 1971, LawLex202200001763JBJ.

A court of appeal cannot dismiss the landlord's request for rescission of the lease while noting that, under the terms of the lease, the rented premises must be used exclusively for the operation of a hotel-restaurant business, boarding house, bar, tea room, and any similar business, and that the option to add ancillary or complementary activities can only be implemented with the landlord's authorization.

Cass. 3e civ., 18 March 1998, LawLex202200001754JBJ.

A court of appeal may grant the request for rescission of the lease and order the eviction of the lessee who expanded their activity without awaiting the outcome of their action for despecialization and did not comply within one month with the order invoking the termination clause that enjoined them to respect the purpose of the lease.

Cass. 3e civ., 28 May 2003, LawLex202200001120JBJ.

When, despite a formal notice, a lessee has not complied with the lease provisions that did not authorize either the heating contractor activity or the roofer activity, the termination with refusal to renew the lease without eviction compensation, due to the unauthorized exercise of an activity other than that provided for in the lease, is valid.

Cass. 3e civ., 24 October 1990, LawLex202100003955JBJ.

If the sale of confectionery, chocolate, and ice cream is not ancillary or complementary to the baker's activity, engaging in this activity without authorization does not constitute a serious enough breach to warrant the termination of the lease, especially since the sale of these products is often carried out by bakers and the lease does not contain any specific prohibition on this matter.

The refusal to renew the lease is justified when the lessee, in violation of the lease exclusively authorizing the operation of a bar-restaurant-food business, created, without the landlord's consent, a “dancing - nightclub” and continued this activity despite formal notices to cease.

Cass. 3e civ., 29 October 1973, LawLex202200001109JBJ.

When the provisions of a lease clearly prohibit any addition of activity except by implementing the specific prior procedures provided by the Commercial Code and sanction the breach of this obligation by the automatic rescission of the lease, the court has no discretion regarding the seriousness of the breach, as the rescission occurs automatically.

CA Douai, 2 November 2011, LawLex202200000884JBJ.

500 Questions - Business Law

350. Under what conditions can a lessee obtain full despecialization?

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350. Under what conditions can a lessee obtain full despecialization?

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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