Commercial Leases/Business Goodwill

In all urgent cases, Article 834 of the Code of Civil Procedure allows the president of the Judicial Court, within the limits of his jurisdiction, to order in summary proceedings “any measures that do not encounter any serious dispute or that are justified by the existence of a dispute.” As such, he may “prescribe in summary proceedings the conservatory measures or restoration measures that are ne …

Interim applications

In all urgent cases, Article 834 of the Code of Civil Procedure allows the president of the Judicial Court, within the limits of his jurisdiction, to order in summary proceedings “any measures that do not encounter any serious dispute or that are justified by the existence of a dispute.” As such, he may “prescribe in summary proceedings the conservatory measures or restoration measures that are necessary, either to prevent imminent damage or to stop a manifestly unlawful disturbance” (Art. 835, para. 1, Code of Civil Procedure), or, depending on the case, “grant an advance to the creditor, or order the execution of the obligation even if it is an obligation to do” (para. 2). The summary proceedings judge is not, however, required to characterize the urgency to order such measures .

If the summary judge can apply a termination clause as of right , or even grant extensions while suspending the execution of this clause , provided, in all cases, that there is no serious difficulty , it is not within their powers to pronounce the termination of a commercial lease . Indeed, only the trial court can assess the existence and seriousness of a tenant's breach of their contractual obligations. The summary judge, who can only observe the acquisition of the termination clause, exceeds their powers when they pronounce the termination of the commercial lease due to such a breach . The summary judge can also order the eviction of the tenant, even if this results in the inevitable ruin of the business . However, when the parties disagree on the name of the expert responsible for evaluating the rent price upon lease renewal, they cannot, pursuant to Article 145 of the Code of Civil Procedure, refer the matter to the summary judge, who defers to the rent judge . The summary judge cannot declare the forfeiture of a commercial tenant's right to eviction compensation and their right to remain on the premises until it is paid . Finally, they cannot annul a payment order , nor rule on the validity of an indexation clause  or on the alleged fault of the lessor regarding the obligation of information and on the scope of the assignor's guarantee in the event of lease assignment .

If, before any trial, there is a legitimate reason to preserve or establish proof of facts on which the resolution of the dispute may depend, Article 145 of the Code of Civil Procedure specifies that “legally admissible investigative measures may be ordered at the request of any interested party, by petition or in summary proceedings.” No text related to commercial leases opposes the exercise by the summary proceedings judge of the powers conferred on him by the provisions of Article 145 . Thus, when no trial court is seized of requests concerning the eviction indemnity offered by the lessor and the occupancy indemnity owed by the lessee who remains on the premises, the lessor has a legitimate reason to request an expert assessment for the evaluation of these indemnities by the summary proceedings judge . The fact that the expert measure is requested before the effective date of the notice with refusal to renew is irrelevant insofar as the eviction indemnity claim originates from the notice served, which revealed the potential for a dispute . Conversely, the judge approached by the lessor, before any notice with refusal to renew or before exercising his option right under Article L. 145-57 of the Commercial Code, with a request for the appointment of an expert to determine the amount of an eviction indemnity, should not grant it as there is not yet a potential dispute . Indeed, while the existence of a potential dispute is not a condition for the admissibility of the request but for its success, it is important that at the date the judge rules, the requesting party justifies a legitimate reason within the meaning of Article 145 of the Code of Civil Procedure . However, the Court of Cassation has considered that a proceeding solely concerning the annulment of a notice refusing the renewal of a commercial lease and offering the payment of an eviction indemnity does not preclude a request for expertise, before any trial, intended to gather the necessary evidence for the evaluation and determination of eviction and occupancy indemnities, which the trial court has not been seized of .

CA Poitiers, 11 June 2024, LawLex202400004460JBJ; CA Poitiers, 25 June 2024, LawLex202400004834JBJ; CA Lyon, 26 June 2024, LawLex202400005117JBJ.

Cass. 3e civ., 19 December 1983, LawLex202300013567JBJ, which specifies that the provisional nature of an interim order does not imply that the interim relief judge is prohibited from taking a measure likely to cause harm to one of the parties.

CA Douai, 27 June 2024, LawLex202400005046JBJ.

CA Amiens, 27 June 2024, LawLex202400005056JBJ.

Cass. 3e civ., 18 December 2002, LawLex202300001622JBJ.

Cass. 3e civ., 18 December 2002, LawLex202300001622JBJ, previously cited.

CA Paris, 23 June 2015, LawLex202400000118JBJ.

Cass. 3e civ., 16 April 2008, LawLex202300001621JBJ.

Cass. 3e civ., 8 April 2010, LawLex202300002883JBJ: in this case, on the day the judge ruled, the lessor had exercised their option right pursuant to Article L. 145-57 of the Commercial Code.

Cass. 3e civ., 6 April 2023, LawLex202300009125JBJ, which approves the decision of the court of appeal that, having noted that the proceedings contesting the notice did not have the same purpose as those it was seized of, correctly concluded that the request for an expert opinion was admissible.

Cass. 3e civ., 15 October 2008, LawLex202300011055JBJ: when the deadlines granted by an interim order suspending the enforcement of the termination clause have not been met, the court of appeal, seized on the merits, cannot grant new deadlines.

CA Lyon, 26 June 2024, LawLex202400005117JBJ, considering that the summary judge may establish the automatic termination of the commercial lease, provided that the failure to pay the amount claimed in the order to pay invoking the termination clause is manifestly wrongful, that the lessor is clearly in a position to invoke the application of this clause in good faith, and that the termination clause is unambiguous and does not require interpretation.

Cass. 3e civ., 20 December 2018, LawLex202300010741JBJ.

CA Aix-en-Provence, 13 June 2024, LawLex202400004624JBJ; CA Chambéry, 2 July 2024, LawLex202400005048JBJ, which specifies that it is not for the summary proceedings judge, judge of the obvious, to interpret the termination clause of a lease contract or the seriousness of a breach in the execution of the contract if it is not easily determinable.

Cass. 3e civ., 19 December 1983, LawLex202300013567JBJ, prec.

CA Versailles, 5 November 2020, LawLex202400000117JBJ.

Cass. 3e civ., 15 December 2021, LawLex202400000119JBJ.

Versailles, 22 February 2024, LawLex202400001806JBJ; Aix-en-Provence, 27 June 2024, LawLex202400005052JBJ: the summary judge may note the automatic termination of a commercial lease pursuant to a termination clause when it is regularly enforced, which notably requires that the validity of the order to pay invoking the termination clause faces no serious challenge.

Commercial Leases/Business Goodwill

342. Interim applications

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

342. Interim applications

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise