Commercial Leases/Business Goodwill

Under the terms of Article R. 145-23, para. 2, of the Commercial Code, all disputes relating to the application of the status of commercial leases, other than those concerning the determination of the revised or renewed rent, are brought before the Judicial Court. It follows from Articles R. 211-3-26, 11° and R. 211-4 of the Code of Judicial Organization that this jurisdiction, being of public ord …

Jurisdiction of the Judicial Court

Under the terms of Article R. 145-23, para. 2, of the Commercial Code, all disputes relating to the application of the status of commercial leases, other than those concerning the determination of the revised or renewed rent, are brought before the Judicial Court. It follows from Articles R. 211-3-26, 11° and R. 211-4 of the Code of Judicial Organization that this jurisdiction, being of public order, has exclusive character to hear “actions relating to commercial leases based on Articles L. 145-1 to L. 145-60 of the Commercial Code.” Thus, the dispute, which concerns the validity and execution of the commitment contained in the commercial lease with regard to the status of commercial leases, and more generally requires an assessment of compliance with the status , falls under the exclusive jurisdiction of the Judicial Court, even if it does not concern the parties to the lease . It is, therefore, competent to rule on:

- the determination of an occupancy indemnity due pursuant to the provisions of Article L. 145-28 of the Commercial Code ;

- the request for payment of an eviction indemnity by the lessee, based on Article L. 145-14 of the same code, even if the lessor is a public entity ;

- the question relating to the ownership of the building or its management ;

- the dispute concerning the validity of a lease clause prohibiting the lessee, without the express and written consent of the lessor, from transferring to a successor in their business ;

- the dispute whose resolution requires the prior examination of the conditions under which the option right granted to the lessor by Article L. 145-57 of the Commercial Code  was exercised.

The Court of Cassation has nevertheless specified that while the judicial court may hear a claim for compensation filed by the lessee of premises leased under a commercial lease by a public entity, the administrative court has sole jurisdiction to hear claims for compensation for public works damages, even if there is a commercial lease between the public entity on whose behalf the works are carried out and the victim of these damages . Conversely, disputes concerning contracts concluded for the rental of property belonging to the private domain of a municipality pertain to the management of the private domain of local authorities and fall under the jurisdiction of the judicial courts .

Furthermore, the Judicial Court may be seized, in the forms applicable before this jurisdiction, with a request for the determination of the revised or renewed rent of a commercial lease, presented incidentally to another dispute within its jurisdiction (Article R. 145-23, para. 2, Commercial Code) , and is, in this case, obliged to rule on the merits of this request . Thus, the Judicial Court, which is seized of a dispute regarding the date of the lease renewal, is entitled to examine the argument based on the removal of the cap on the renewed rent . Similarly, when it is seized with a request for the determination of the occupancy indemnity due between the effective date of the notice and that of the exercise of the right of repentance, it is competent to hear the incidental request for the determination of the price of the renewed lease pursuant to Article R. 145-23 of the Commercial Code . The procedure applicable before the Judicial Court, seized incidentally with a request for the determination of the price of the revised or renewed lease, is the contentious procedure applicable before this jurisdiction and not the special procedure by memorandum in force before the commercial rent judge .

Finally, the Court of Cassation overturned the decision of the Aix-en-Provence Court of Appeal for violating the provisions of Article R. 145-23 of the Commercial Code, which had upheld the jurisdiction of the commercial court, whereas the company in question continued the activity previously conducted by the assignor of the business under a commercial lease and claimed to pay the rent and thus hold a commercial lease . However, the commercial court retains a residual role under Article L. 721-3 of the Commercial Code in cases where the dispute involves two parties who are merchants, even if it concerns a commercial lease .

Cass. com., 18 October 2016, LawLex201600001697JBJ; Cass. 3e civ., 13 October 2021, LawLex202100005947JBJ.

Cass. 3e civ., 24 October 2019, LawLex202400000093JBJ: in this case, the obligation relied upon by the Association of Merchants resulted from the mandatory membership clause contained in the commercial lease, which the tenant considered to be deemed unwritten as it infringed upon “commercial property” and the freedom to transfer their business.

Cass. 3e civ., 12 March 1985, LawLex202400000092JBJ.

Cass. 3e civ., 24 February 1999, LawLex202300014717JBJ, which quashes the appeal decision that held the argument based on the removal of the cap could not have been examined by the Judicial Court, outside the usual rent-setting procedure which falls under the exclusive jurisdiction of the commercial lease judge, while noting that the court was seized of a dispute concerning the date of the lease renewal.

Cass. 3e civ., 9 June 2016, LawLex202300014679JBJ.

Cass. 3e civ., 27 November 2002, LawLex202300014705JBJ; 23 May 2013, LawLex202300014674JBJ; 25 January 2023, LawLex202300001550JBJ; 6 July 2023, LawLex202400001734JBJ.

Cass. 3e civ., 9 May 2012, LawLex202300014672JBJ.

Cass. com., 27 October 2009, LawLex202200011133JBJ: in this case, the dispute was between two merchants regarding the payment of invoices related to drafting fees for amendments concerning the lease of a commercial premises.

Cass. 3e civ., 14 September 2017, LawLex202300014681JBJ.

CA Aix-en-Provence, 13 June 2024, LawLex202400004635JBJ.

Cass. 3e civ., 5 March 1974, LawLex202300014710JBJ.

Cass. 3e civ., 20 March 1996, LawLex202300014716JBJ.

Cass. com., 18 October 2016, LawLex201600001697JBJ, op. cit.

Cass. 3e civ., 14 March 2024, LawLex202400002465JBJ.

CA Aix-en-Provence, 13 June 2024, LawLex202400004635JBJ, op. cit.

CA Versailles, 4 April 2024, LawLex202400002963JBJ; CA Aix-en-Provence, 27 June 2024, LawLex202400004892JBJ.

Commercial Leases/Business Goodwill

340. Jurisdiction of the Judicial Court

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340. Jurisdiction of the Judicial Court

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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