Commercial Leases/Business Goodwill

When the assignment of the commercial lease right is accompanied by a guarantor clause from the assignor for the benefit of the lessor, Article L. 145-16-2 of the Commercial Code, in its version resulting from the law of 18 June 2014 , specifies that “the latter can only invoke it for three years from the assignment of said lease,” the expiration of this period ending the assignor's coverage oblig …

Duration of the warranty

When the assignment of the commercial lease right is accompanied by a guarantor clause from the assignor for the benefit of the lessor, Article L. 145-16-2 of the Commercial Code, in its version resulting from the law of 18 June 2014 , specifies that “the latter can only invoke it for three years from the assignment of said lease,” the expiration of this period ending the assignor's coverage obligation. Article L. 145-16-2 of the Commercial Code does not apply to so-called “reversed” clauses imposing the assignee's joint liability for amounts owed by the assignor before the assignment since the text expressly refers only to the assignor's joint guarantee.

Article L. 145-16-2 has raised some interpretative difficulties regarding its temporal application and mandatory nature. Indeed, since this provision is not referred to by Article L. 145-15 of the same code, the Paris Court of Appeal had concluded that it was not of public order . Seized of an appeal against this decision, the Court of Cassation, on the contrary, considered that Article L. 145-16-2 is of public order , excluding the possibility for the parties to derogate from it. In the absence of transitional provisions, the Court also held that the text is not immediately applicable to leases in progress as of 20 June 2014, which are subject to the old law since this article does not meet an imperative reason of general interest and the joint guarantee, whose duration is limited to three years, does not constitute a legal effect of the contract but remains governed by the will of the parties . However, the Supreme Court did not consider it necessary to refer to the Constitutional Council the question of whether the provisions of Article L. 145-16-2 of the Commercial Code, applicable to commercial lease contracts renewed after their entry into force but initially concluded under the previous regime, disproportionately infringe upon the economy of legally concluded contracts in view of the pursued objective, in violation of Articles 4 and 16 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789, since it does not present a serious character .

The question arises regarding the influence of termination or renewal on the duration of the joint guarantee. In the absence of an express stipulation to the contrary, the solidarity can only apply to amounts due at the date of termination of the lease  and within the limit of three years (Article L. 145-16-2 Commercial Code). The joint guarantee clause applies, within the legal limit, both in the case of lease renewal  and tacit extension .

Law No 2014-626 of 18 June 2014 on Craftsmanship, Commerce, and Very Small Enterprises, OJ of 19 June 2014, Art. 8.

CA Paris, 7 February 2018, LawLex202200009590JBJ.

Cass. 3e civ., 11 April 2019, LawLex202200009070JBJ.

Cass. 3e civ., 11 April 2019, LawLex202200009070JBJ, prec. See already Versailles, 11 May 2017, LawLex202200009030JBJ.

Cass. 3e civ., QPC, 6 February 2020, LawLex202200000357JBJ.

Cass. 3e civ., 28 September 2022, LawLex202200008666JBJ.

Cass. 3e civ., 28 September 2022, LawLex202200008666JBJ, prec., which quashes the judgment that holds, to condemn the assignor to the payment of a certain sum for rents due until 9 April 2018, that the renewal of the lease, dated 10 April 2015, did not eliminate the guarantee obligation to which he is subject under the lease, despite the transfer of the business, whereas the lease was terminated on 7 December 2015 by the assignee's liquidator.

Cass. 3e civ., 5 June 2002, LawLex202200009059JBJ; 7 February 2007, LawLex202200004708JBJ. Also see Versailles, 11 May 2000, LawLex202300014348JBJ; Nancy, 29 March 2023, LawLex202300014480JBJ.

Commercial Leases/Business Goodwill

318. Duration of the warranty

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318. Duration of the warranty

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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