Commercial Leases/Business Goodwill

Subletting constitutes a lease contract, which involves the payment of a price, or the provision of consideration in kind, in cash, or in services , whereby the tenant of a commercial lease temporarily transfers to a third party all or part of the enjoyment they have over the premises, so that the third party can operate their own business . It takes the form of a commercial lease concluded betwee …

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Subletting constitutes a lease contract, which involves the payment of a price, or the provision of consideration in kind, in cash, or in services , whereby the tenant of a commercial lease temporarily transfers to a third party all or part of the enjoyment they have over the premises, so that the third party can operate their own business . It takes the form of a commercial lease concluded between the principal tenant and the subtenant, subject, as such, to the status of commercial leases, subject to the rules relating to its duration and the special provisions of Articles L. 145-31 and L. 145-32 of the Commercial Code .

Subleasing must be distinguished, notably, from the management lease of a business, which consists, pursuant to Article L. 144-1 of the Commercial Code, of the agreement by which the owner of a business leases it to a manager who operates it at their own risk  and in which the enjoyment of the premises is only a necessary and ancillary consequence . Thus, when the tenant-manager, who sells a completely different type of product under another brand, does not exploit the clientele personally attached to the owner of the business and only the lease right has been made available, the contract must be reclassified as a sublease . Similarly, it is distinguished from the leasing of a business, which consists, pursuant to Article L. 313-7, 3 of the Monetary and Financial Code, of a paid lease of a business, accompanied by a unilateral promise of sale. Subleasing is also not akin to making premises available with service provision. Thus, the qualification of sublease, within the meaning of Article L. 145-31 of the Commercial Code, must be excluded when the main tenant makes rented offices available to third parties, exclusively and without time limitation, for a globally fixed price, which remunerates inseparably both the provision of the premises and the specific services sought by clients, such as maintenance, reception, security, insurance, and wifi, which are only ancillary to the provision of equipped offices .

For a contract to be classified as a sublease, the subleased premises must be identical to the leased premises. Thus, when a commercial lease pertains solely to bare land, the leasing by the tenant of premises located in authorized constructions that they have built on this land cannot be classified as a sublease, as the object of the lease is not the land, but the premises of which they remain the sole owner .

If Article 1717 of the Civil Code establishes the general principle of the lessee's freedom to sublet, as long as this ability has not been prohibited, the legislator reverses this principle for commercial leases, establishing a general prohibition, and subjects the subletting of commercial premises to a specific regime provided by Articles L. 145-31 and L. 145-32 of the Commercial Code.

Cass. 3e civ., 26 February 1992, LawLex202300013017JBJ, for making premises available to a third party, who carried out new activities not authorized by the lease, in exchange for an advantage consisting of maintaining the business open while the lessee engaged in another activity; 5 July 1995, LawLex202300013021JBJ; 19 May 1999, LawLex202300013016JBJ, which emphasizes that the existence of a sublease implies the payment of a price or the provision of a consideration; 4 November 2003, LawLex202300013022JBJ, which holds the enjoyment of all or part of the leased property in exchange for consideration, in kind, in cash, or in services.

Cass. com. 15 January 1963, LawLex202300012230JBJ; Cass. 3e civ., 10 November 2009, LawLex202200009896JBJ.

CA Pau, 26 March 2024, LawLex202400002757JBJ.

Cass. 3e civ., 23 May 1995, LawLex200200005469JBJ; 19 March 2008, LawLex200800000673JBJ.

Cass. 3e civ., 9 July 2003, LawLex200300003239JBJ; 19 March 2008, LawLex200800000673JBJ.

Cass. 3e civ., 20 May 2014, LawLex202200009906JBJ.

Cass. 3e civ., 27 June 2024, LawLex202400004777JBJ.

Cass. 3e civ., 6 December 1972, LawLex202300012265JBJ.

Commercial Leases/Business Goodwill

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