Commercial Leases/Business Goodwill

Articles 2240 and following of the Civil Code enumerate the causes of interruption of the prescription period. Thus, interrupting the prescription are the debtor's knowledge of the right of the person against whom they were prescribing (Art. 2240), a legal action, even in summary proceedings (Art. 2241), a protective measure taken pursuant to the Code of Civil Enforcement Procedures, or an act of forced execution (Art. 2244). This enumeration is exhaustive. Therefore, a formal notice, even if sent by registered letter with acknowledgment of receipt, does not interrupt the prescription period .

In the event of a summons, the date of its service, and not the date it was filed with the registry, constitutes the starting point for the interruption of the limitation period . The summons served by the party invoking the limitation period, to the one against whom it claims to have prescribed, does not interrupt the limitation period .

The notification of the memorandum, by sending a registered letter with a request for acknowledgment of receipt, interrupts the limitation period for the action to set the price of the renewed lease, even if the delivery of the memorandum to the other party occurred after the expiration of the limitation period , or if the memorandum was not signed  or is affected by a substantive defect . However, since the preliminary memorandum is not a legal action within the meaning of Article 2240 of the Civil Code, its notification only interrupts the limitation period when the dispute is brought before the commercial lease judge . The notification of the memorandum by simple letter , or the filing of the memorandum with the court registry for the purpose of setting the hearing date, which does not bring the matter before the commercial lease judge , does not interrupt the limitation period either.

The interruption produces its effects until the termination of the proceedings (Art. 2242), erases the acquired period, and starts a new period of the same duration (Art. 2231). Thus, after notification of the first brief by the claimant and in the absence of any specification or restriction, a new two-year limitation period begins, which may again be interrupted by a summons, by a new brief from the claimant or the defendant , or by a court summons .

The legal action, even in summary proceedings, interrupts the limitation period as well as the foreclosure period, even if it is brought before an incompetent court or if the act of seizing the court is annulled due to a procedural defect (Art. 2241 Civil Code). The legal action that interrupts the limitation period for the defendant in an action is understood as one by which they seek to obtain an advantage other than the mere dismissal of their opponent's claim . Thus, the landlord's action to validate the refusal of renewal without eviction compensation for a serious and legitimate reason does not interrupt the two-year limitation period for the tenant's action seeking payment of eviction compensation until the termination of the proceedings . To avoid foreclosure, the tenant should have filed a counterclaim and notified the landlord of defense submissions within two years from the notification of the refusal to renew the lease.

In principle, the interruption of the limitation period cannot extend from one action to another, but it is otherwise when the two actions, although having a distinct cause, aim at one and the same goal . Thus, actions for the determination of eviction and occupancy compensation being distinct in their purpose and cause, the implementation of one does not interrupt the limitation period of the other . The same applies to the tenant's action seeking the appointment of an expert to determine the amount of eviction compensation and the landlord's action seeking payment of occupancy compensation .

Finally, if the waiver of the statute of limitations can be express or tacit, it must result from circumstances unequivocally establishing the intention not to invoke the statute of limitations (Article 2251 Civil Code). This is not the case when the tenant's lawyer sent the landlord's lawyer submissions containing a table summarizing the amounts owed by the tenant and those for which the tenant is a creditor , or from the tenant's spontaneous participation in the amicable expertise initiated by the landlord, along with the fact that the tenant, through his counsel and by letter, made observations on the lease renewal project following the expertise, particularly on the rent clause, considering that it does not reflect the agreements and exchanges that took place . Conversely, since compensation constitutes, according to Article 70, para. 2, of the Code of Civil Procedure, a claim and not a defense on the merits, the tenant, who both at first instance and on appeal, expressly invoked compensation between the rents due and certain old expenses paid by him, thereby resulting in an acknowledgment of debt on his part, has unequivocally waived the right to invoke the statute of limitations .

Cass. com., 18 May 2022, LawLex202200005205JBJ.

Cass. 3e civ., 27 November 2002, LawLex202200006842JBJ, regarding the action for payment of an occupancy indemnity; 22 June 2022, LawLex202300012798JBJ, concerning an action for payment of the eviction indemnity.

CA Grenoble, 24 September 2015, LawLex202400000087JBJ, previously cited.

Cass. 2e civ., 1 February 2018, LawLex201800000279JBJ, regarding a claim for payment of commercial agent commissions claimed.

Cass. 3e civ., 3 November 2021, LawLex202200002338JBJ.

Cass. 3e civ., 26 March 2014, LawLex202300000230JBJ, which approves the decision of the court of appeal that, having noted that the refusal of renewal on 23 January 2008 was justified by the absence of a commercial lease binding the parties and that the dispute submitted to the district court involved the same parties regarding the same lease and had the same subject as the ongoing proceedings, namely the existence of a right for the occupant to remain on the premises, deduced that the objection of lack of jurisdiction of the district court raised by the latter at the hearing on 9 June 2009 due to the existence of a commercial lease constituted a legal action that interrupted the two-year limitation period for challenging the grounds for the refusal of renewal on 23 January 2008.

Cass. 3e civ., 19 January 2000, LawLex202300002540JBJ.

Cass. 3e civ., 15 February 1995, LawLex202400000516JBJ.

Cass. 3e civ., 26 May 2009, LawLex202400000513JBJ, which quashes the appellate decision that held, to dismiss the prescription, that even if the balance of this statement appears incorrect, it nonetheless constitutes an acknowledgment of the amounts due, and thus an implicit waiver of the prescription.

Cass. 3e civ., 30 September 2009, LawLex202400000514JBJ, which quashes the appellate decision that held, to declare the action for setting the rent of the renewed lease brought by the landlord as not time-barred, that these acts constitute an unequivocal acknowledgment by the tenant of the landlord's right to have the rent set upon renewal and interruption of the limitation period.

Cass. 3e civ., 3 March 1993, No 90-21.407, concerning a rural lease.

CA Grenoble, 24 September 2015, LawLex202400000087JBJ.

Cass. 3e civ., 17 October 2012, LawLex202300014671JBJ.

Cass. 3e civ., 13 February 2002, LawLex202400000113JBJ, which specifies that the lack of signature on the brief does not constitute a substantive irregularity.

Cass. 3e civ., 8 July 2015, LawLex202300000224JBJ, which specifies that the irregularity affecting the prior memorandum was remedied by the summons as well as by all subsequent procedural acts.

Cass. 3e civ., 25 January 2023, LawLex202300001550JBJ.

Cass. 3e civ., 2 February 2005, LawLex202400000515JBJ.

Cass. 3e civ., 23 January 2013, LawLex202300014670JBJ, which specifies that this submission does not seize the commercial lease judge.

Paris, 14 January 2000, No 1999/04656, which specifies that the notification of a second brief also interrupts the period and starts a new one; Lyon, 10 September 2003, No 02/02285, Loyers et copropr. 2004, comm. 189, note BRAULT: in this case, if the notification by the lessor to the lessee of the preliminary brief on 9 March 1999 validly interrupted the prescription and started a new two-year period, the response brief notified by the lessee to the lessor on 28 April 1999 had an interruptive effect on the prescription so that by notifying a new brief on 23 April 2001 and serving on 25 April 2001, the lessor acted within the biennial period.

353. Conditions