Commercial Leases/Business Goodwill

Under the terms of Article L. 145-16, para. 1, of the Commercial Code, agreements that tend to prohibit the tenant from transferring their lease or the rights they hold under the status of commercial leases to the purchaser of their business or company, or to the beneficiary of the universal transfer of their professional assets, are deemed unwritten. Pursuant to this text, the lessee is entirely free to transfer to the purchaser of their business the rights they hold under the provisions relating to the status of commercial leases, without their right to lease renewal and their right to eviction compensation being challenged. Thus, such compensation cannot be limited in amount due to the transfer of the business, even after the effective date of the notice with refusal to renew . Article L. 145-16 makes no distinction between total or partial transfer, so the clause that allows the lessee to transfer their rights to their potential successor in the profession only in the event of a sale of the entire business must be deemed unwritten, as long as the activity carried out in each premises can constitute an independent operation . The same applies to the transfer of business branches that themselves constitute a distinct and autonomous business .

To fall under the prohibition of Article L. 145-16, the prohibition on assignment must be general and absolute, which excludes from its scope merely limiting or restrictive clauses . Thus, deemed unwritten are the clause requiring personal operation of the business by the lessee during the last three years, which results in the impossibility of assigning the lease during this period , the one prohibiting the pledging of the leasehold right without providing any possibility of authorization or approval , or the clause that only authorizes assignment to a successor in the lessee's business on the condition that this assignee is an individual, thereby excluding any company .

Cass. 3e civ., 2 June 1982, LawLex202300012210JBJ.

Cass. 3e civ., 11 February 1987, LawLex202300012958JBJ.

Cass. 3e civ., 24 November 1987, LawLex202300012959JBJ.

Cass. 3e civ., 2 October 2002, LawLex202200007803JBJ.

Cass. 3e civ., 23 July 1986, LawLex202200007807JBJ.

Cass. 3e civ., 11 May 1982, LawLex202200007804JBJ.

Cass. 3e civ., 29 February 1972, LawLex202300012960JBJ.

296. General and Absolute Prohibition Clauses