Commercial Leases/Business Goodwill

The irregular transfer of the lease due to non-compliance with legal or contractual formalities allows the lessor to enforce the termination clause by operation of law or to seek termination of the lease before the judge. If the application of the termination clause does not raise particular difficulties as it involves sanctioning a breach of the obligations stipulated in the lease, judicial termi …

Conditions

The irregular transfer of the lease due to non-compliance with legal or contractual formalities allows the lessor to enforce the termination clause by operation of law or to seek termination of the lease before the judge. If the application of the termination clause does not raise particular difficulties as it involves sanctioning a breach of the obligations stipulated in the lease, judicial termination requires establishing that the breach alleged by the lessor in support of their request is sufficiently serious for it to be pronounced (Article 1224 Civil Code), which is assessed at the discretion of the trial court.

Thus, judicial termination is justified when the lessee transfers the leasehold right and the business to the assignee under conditions such that the lessor is absolutely unable to accept or reject the transfer in the form of a contribution to a company, in violation of the lease clause prohibiting the lessee from transferring all or part of their leasehold right without the express and written consent of the lessor . This is also the case for the transfer of the lease, which was not executed in authentic form, even if the lessor gave their approval to the future assignee, while the lease clause only allowed the lessee to transfer their leasehold right under the dual condition of requiring the express and written consent of the lessor and executing the transfer by authentic deed , the transfer of the lease without the business and without the lessor's consent while the lease prohibited the lessee from transferring their leasehold right without the express and written consent of the lessor, except to a successor in their business, even if the assignee conducts a business identical to that of the assignor , or the partial transfer in violation of the clause requiring a transfer to the successor of the entire business . When it is established that the lessor was not called to participate in the act of transferring the business, necessarily including the transfer of the lease, nor was informed of it before and after the execution of the act, such failures have prevented the lessor from ensuring the regularity of the transfer as well as the morality, solvency, and professional competence of the assignee . Termination is also justified when the lessee has contravened the provisions of the lease by failing to inform the lessor, as they are obliged, of their intention to transfer the leasehold right by indicating the qualities of the potential assignee, the price of the transfer, as well as the terms of payment thereof, so as to allow them to exercise their right of first refusal .

On the other hand, failing to call the landlord to the deed of transfer, in violation of contractual stipulations, does not constitute a sufficiently serious breach to warrant the termination of the lease, insofar as the landlord was aware of the transfer before it occurred  or acquiesced by expressing satisfaction in a letter addressed to the assignor . Similarly, the lessee's fault in assigning their lease rights without obtaining the landlord's consent is not considered serious if the landlord remains silent in response to the lessee's requests for consent to the assignment of lease rights, and in the absence of any express opposition, even if unreasoned, from the landlord , or when the landlord abuses their rights, prompting the lessee's behavior . Finally, the violation of the clause allowing assignment only to a successor in the business does not permit judicial termination, as long as the lease was granted for the operation of all businesses and the landlord was informed of the transfer project .

Cass. com., 9 March 1967, LawLex202300013569JBJ.

Cass. 3e civ., 17 January 1969, LawLex202300014020JBJ; CA Paris, 3 November 1992, LawLex202300013698JBJ.

Cass. 3e civ., 10 January 1995, LawLex202300014019JBJ.

Cass. 3e civ., 28 March 1977, LawLex202300014305JBJ.

Cass. 3e civ., 30 November 1988, LawLex202300014308JBJ.

CA Versailles, 20 February 1992, No 90/4255.

Cass. 3e civ., 15 June 2011, LawLex202200004027JBJ.

Cass. com., 4 March 1963, LawLex202300014309JBJ.

Cass. 3e civ., 30 April 1969, LawLex202200007596JBJ.

Cass. 3e civ., 20 October 1971, LawLex202300010930JBJ.

Cass. 3e civ., 5 January 2012, LawLex202200008462JBJ: in this case, the lessor deliberately refrained from providing a response to the assignor, who repeatedly sought consent for the lease assignment, aimed to buy time by remaining obstinately silent and maintaining the illusion of a potential sale project, and never requested information on the proposed assignment nor opposed it with any serious reason for refusal, demonstrating, according to the letter from his agent, a calculated attitude to discourage the assignor or push him to make a mistake and thus reclaim the premises.

Commercial Leases/Business Goodwill

314. Conditions

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314. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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