Commercial Leases/Business Goodwill

The regular assignment of the lease results in the transferor being divested in favor of the transferee. Assimilated to an assignment of a claim, it transfers to the transferee the right to act to assert against the ceded party the rights arising from the title . Thus, the transferor is no longer entitled to call the lessor as a guarantor when, on the date of the summons, he has no legal relations …

Rights and obligations of the assignee

The regular assignment of the lease results in the transferor being divested in favor of the transferee. Assimilated to an assignment of a claim, it transfers to the transferee the right to act to assert against the ceded party the rights arising from the title . Thus, the transferor is no longer entitled to call the lessor as a guarantor when, on the date of the summons, he has no legal relationship with the lessor due to the prior lease assignment, if before the assignment, he did not express the intention to reserve the right to act against the owner .

The assignee of the leasehold right must have the peaceful enjoyment of the leased premises in exchange for the payment of rent. They benefit from the right to lease renewal, as well as the payment of eviction compensation in case of refusal, provided they justify, in accordance with Article L. 145-8, para. 2, of the Commercial Code, an effective operation of their business during the three years preceding the expiration date of the lease or its extension, or if they can rely on the rights acquired by the assignor to complete the duration of their operation . When the lessee has requested the renewal of their lease, which has been accepted in principle, before assigning their business, which they operated in the leased premises, along with the attached leasehold right, the Court of Cassation allows that this renewal, still in effect at the date of the assignment of the business, benefits the purchaser of the business .

Article L. 145-17 of the Commercial Code allows the landlord to refuse the renewal of the commercial lease without being liable for the payment of eviction compensation if they justify a serious and legitimate reason against the tenant. In the event of the assignment of the lease right, the refusal they oppose to the assignee's renewal request cannot be based on facts attributable to the previous tenant, which are not enforceable against the current tenant . However, a serious and legitimate reason for refusing renewal is constituted by the offense committed by the assignor that continued after the assignment of the lease without the assignee, then at fault, putting an end to it .

Notwithstanding any agreement concluded with the lessor, the assignee is bound by all obligations arising from the commercial lease. In particular, they must respect the purpose of the premises and cannot, through their own default, modify the nature of the lease they agreed to sign . In the case of successive assignments, these result in the transmission of obligations to the last holder of the contract, in their capacity as successor to the previous tenants, who becomes liable to the lessor for damages caused by their predecessors , except for those for which the latter have committed to make repairs during the establishment of the exit inventory . Conversely, the lessor, who enters into a new lease with the tenant knowing the transformations of the premises, waives the obligation for the latter, assignee of the lease right, to be liable for damages caused by their predecessors . When the commercial lease is assigned to the benefit of the lessor, this assignment results in its termination, due to the merging of the qualities of owner and tenant, so that the obligation to restore the leased premises, which was incumbent on the last holder of the lease, is not transferred to the assignee lessor who remains the creditor .

After the regular transfer of the leasehold right, the landlord having no further legal connection with the previous tenant, the termination of the contract can only be pronounced against the transferee. However, when no reprehensible fault is alleged against the latter, the lease remains valid with respect to them, and its termination cannot be pronounced for acts committed by the transferor . Indeed, if the transferee is contractually bound under the lease transfer agreement by the obligations of the transferor, they cannot be held responsible for the latter's breaches . Also, the debt of rent due before the transfer of the lease is not, unless otherwise stipulated, transferred to the transferee .

The Court of Cassation also considers that the transfer of the business, which includes the transfer of the lease, does not entail the transmission of the obligation to inform the landlord of a sublease that occurred prior to the transfer of this business .

Cass. 3e civ., 18 July 1979, LawLex202200008682JBJ.

Cass. 3e civ., 18 July 1979, LawLex202200008682JBJ, op. cit.

Cass. 3e civ., 30 November 2017, LawLex202200008669JBJ.

Cass. 1re civ., 5 June 1967, LawLex202300014418JBJ.

Cass. 3e civ., 30 June 2010, LawLex202200008668JBJ.

Cass. 3e civ., 17 September 2008, LawLex202200008663JBJ, which quashes the decision that holds, to declare the assignee of the principal lease liable for the damage suffered by the subtenant due to the unenforceability of the sublease against the owner who was not notified in accordance with the terms of the lease, that the obligation to declare the sublease falls on the principal lessee who remains fully responsible for the eviction of the subtenant.

Cass. com., 15 May 1962, LawLex202300014267JBJ.

Cass. 3e civ., 24 October 1968, LawLex202300014602JBJ.

Cass. 3e civ., 4 October 2000, LawLex202300014145JBJ, which quashes the decision that holds, to uphold the landlord's claim, that the assignee stands in the rights of the outgoing tenant and that the landlord is therefore entitled to rely on the breaches committed, whether by the assignee himself, or as succeeding to the rights and obligations of the assignor; 10 January 2007, LawLex202300014146JBJ, for breaches committed by the assignor; 15 September 2010, LawLex202300011899JBJ, which quashes the decision that holds that the assignment of the contract placing the assignee in the position that was that of the assignor, he could not acquire and claim more rights than the assignor had, that the serious breaches committed by the latter, consisting of non-payment and late payment of rent, are enforceable against the assignee, who was aware, at the date of the assignment, of the notice given, and that these breaches constitute a serious and legitimate reason justifying the refusal of renewal without payment of eviction compensation.

Cass. com., 9 July 1962, LawLex202300014147JBJ, which approves the trial court for having decided that the requirements of the law of 30 July 1960, relating to the formal notice to the lessee to cease the violations alleged by the lessor, were satisfied, after stating that, by a prior summons, the owner had given formal notice to the previous tenant to cease a prohibited sublease and that the other violations committed were invoked in the notice, the reports, and the summons; Cass. 3e civ., 30 January 2002, LawLex202200008659JBJ, which quashes the decision that holds, to state that the command did not validly implement the termination clause, that it is established that the assignee is not the originator of the disputed modifications, which were made by the previous tenant, and that no element of the file allows stating that he was aware of these modifications before receiving the command, without investigating whether, following the command delivered to him, it was incumbent upon the assignee to put an end to the contractual breach referred to by this act.

CA Rouen, 17 December 1987, which holds that the landlord's authorization, necessary to allow the assignee to carry out their activity as a sculptor in the leased premises, does not permit them to change the commercial nature of the premises but only the nature of the commercial activity conducted there, which remains subject to the status of commercial leases.

Cass. 3e civ., 27 October 1993, LawLex202300014148JBJ; 9 July 2003, LawLex202200008456JBJ.

Cass. 3e civ., 13 June 2001, LawLex202200008680JBJ: in this case, the assignors demonstrated that they had carried out the work they had expressly undertaken to perform during the joint establishment of the inventory of fixtures.

Cass. 3e civ., 6 March 2012, LawLex202300000649JBJ.

Commercial Leases/Business Goodwill

320. Rights and obligations of the assignee

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320. Rights and obligations of the assignee

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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