Commercial Leases/Business Goodwill

To comply with the provisions of Article L. 145-16, the landlord often opts to include in the lease a clause that only authorizes the transfer to the purchaser of the business or the tenant's company, or to the beneficiary of the universal transfer of their professional assets. The transfer of the lease right to the purchaser of the business should be understood as the transfer of all intangible e …

Clause restricting assignment to a successor or assignee

To comply with the provisions of Article L. 145-16, the landlord often opts to include in the lease a clause that only authorizes the transfer to the purchaser of the business or the tenant's company, or to the beneficiary of the universal transfer of their professional assets. The transfer of the lease right to the purchaser of the business should be understood as the transfer of all intangible elements and rights constituted by the commercial operation. This is not the case when the transferee, which is a travel and transport agency, initially acquired not the business, but the tenant's lease right, as well as the equipment and furniture, without continuing the operation of the tenant's mechanical business, even if, subsequently, it acquired the intangible elements of the business and decided to add general mechanics to its corporate purpose, but after the landlord's refusal to consider it as a tenant . The landlord's waiver of the clause, which limits the beneficiaries of the transfer to those referred to in Article L. 145-16, must be unequivocal .

When a clause stipulates that the lessee can only transfer their lease rights to a successor in their business, the term “successor” necessarily implies the transfer of rights and intangible elements constituted by the commercial operation, and not just the transfer of the lease . Thus, when the clause conditions the transfer of lease rights on the actual transfer of the business and not merely some of its elements, it is essential that clientele is among the transferred elements . Sometimes, the ambiguity of certain clauses may necessitate interpretation. Thus, the agreement, which prohibits the lessee from transferring the lease except to a successor in the same business, and which provides, in the event of a transfer of the business to a purchaser conducting a different business, to notify the lessor to obtain their approval, has been considered clear and precise insofar as it only authorizes the transfer of lease rights to a successor in the business , as opposed to a successor in the commercial activity . Indeed, the transfer can only be made to a purchaser of the business and not to the operator of another business, even if they conduct an activity similar to that of the transferor .

When the lessee wishes to transfer their lease to a transferee, as a successor in their business, who engages in a different activity, they may request the modification of the contractual purpose of the leased premises, prior to the transfer, according to the rules applicable to change of use. Thus, according to the Court of Cassation, a court of appeal cannot, to declare the lease transfer null, hold that the transferee engaged in a different activity from that of the transferor and that there was no need to consider the lessee's possibility of changing their activity, since the validity of the lease transfer does not depend on the activity carried out by the transferee but is subject only to the acquisition by the transferee of the business . Conversely, the Paris Court of Appeal ruled that the transferee, who changes the purpose from a cabaret restaurant, initially specified in the lease, to a nightclub activity, cannot be considered as the successor in the transferor's business . The transferee, who wishes to engage in a different activity from that of the transferor, has every interest in obtaining, prior to the transfer, the landlord's agreement in an amendment to the lease or by concluding a new lease.

It is essential that a business is operated in the leased premises for the clause prohibiting the lessee from transferring their lease rights except to “a successor in their business” to be applicable. Thus, a tenant contravenes the stipulations of the lease agreement, according to which they committed to transfer only to a successor in the same business, when they transfer the lease rights while no business is conducted in the leased premises, the business allegedly operated by the lessee having neither goods nor clientele . When the only stipulated purpose in the lease is for office use and storage of goods, the clause stating that the lessee may only transfer their lease to a successor in the same business as theirs becomes irrelevant in this context, except to the extent that the lessee has personally become the owner of a business, and its scope is limited solely to the transfer of the lease rights of premises for commercial use as offices and warehouses, as provided in the lease .

Finally, the clause stipulating that the landlord's consent is not required in the event of a transfer to a person practicing the same profession must be interpreted, according to the Paris Court of Appeal, as implying, in the parties' minds, a strict identity of profession, excluding the exercise of a new activity compared to the activities provided for in the lease, even if it is complementary to the latter .

Cass. com., 15 January 1962, LawLex202300013577JBJ.

Cass. 3e civ., 12 October 2010, LawLex202200009531JBJ.

Cass. com., 20 December 1965, LawLex202300013340JBJ.

CA Paris, 14 February 2007, LawLex202200007447JBJ.

Cass. com., 6 October 1966, LawLex202300013337JBJ.

CA Reims, 12 July 2011, LawLex202300013578JBJ, which recalls that the holder of a lease subject to the status of commercial leases always has the right to assign their rental contract to the purchaser of their business.

Cass. 3e civ., 28 April 1971, LawLex202300013580JBJ. A contrario, Cass. 3e civ., 11 January 1978, LawLex202300013576JBJ.

Cass. 3e civ., 8 February 1984, LawLex202300013317JBJ. See also, Cass. 3e civ., 15 December 1999, LawLex202100003778JBJ.

Cass. 3e civ., 3 January 1985, LawLex202300013338JBJ.

CA Paris, 28 November 2003, No 2002/15709.

Cass. com., 24 January 2006, LawLex202200007044JBJ; 18 July 1962, LawLex202300013339JBJ.

Commercial Leases/Business Goodwill

298. Clause restricting assignment to a successor or assignee

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298. Clause restricting assignment to a successor or assignee

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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