Commercial Leases/Business Goodwill

The procedure before the commercial rent judge takes a written form, with the parties only able to orally present the arguments and conclusions of their briefs at the hearing (Art. R. 145-29 Commercial Code). However, it is not prohibited for the parties to amend their submissions to introduce new arguments during the proceedings . Indeed, the prohibition for parties before the commercial rent jud …

Judgment

The procedure before the commercial rent judge takes a written form, with the parties only able to orally present the arguments and conclusions of their briefs at the hearing (Art. R. 145-29 Commercial Code). However, it is not prohibited for the parties to amend their submissions to introduce new arguments during the proceedings . Indeed, the prohibition for parties before the commercial rent judge to develop arguments and conclusions other than those in their briefs only concerns the conduct of the debates . The Court of Cassation has also allowed the lessor to present a new argument on appeal in support of their request for the rent increase of the renewed lease submitted to the first judge .

Substituting for the parties, the judge sets the new amount of the rent for the revised or renewed lease. However, it is not within his jurisdiction to rule on the application of the provision in the last paragraph of Article L. 145-34 of the Commercial Code, which only establishes, in the cases it determines, a spreading of the rent increase resulting from the removal of the cap, without affecting the setting of the rent at the rental value . Furthermore, the jurisdiction of the commercial rent judge, which allows him, after setting the price of the revised or renewed lease, to settle the account that the parties are obliged to make, is exclusive of issuing a judgment .

The judicial determination of rent, considering the rental value, must specify the criteria of Article L. 145-33 of the Commercial Code used without imposing any calculation method . However, the judicially determined price cannot, in any case, exceed the limits of supply and demand in revision or renewal, unless the parties have since changed their claims (Article R. 145-21 Commercial Code). The price can only take effect, insofar as it exceeds the limits set by the parties' original claims, from the date of notification of the new claims . During the proceedings, the tenant remains liable for the payment of due rents at the old price or, if applicable, at the price that may, in any case, be provisionally set by the seized court, subject to settlement between the landlord and the tenant after the final determination of the rent price (Article L. 145-57 Commercial Code). The judge also sets the starting point of the new rent, which generally corresponds to the effective date of the renewed lease. The tenant may, given the procedural delays, be liable for interest, insofar as the new rent is retroactively applicable. The interest due on the difference between the renewed lease rent and the rent paid since the renewal runs, in the absence of an agreement to the contrary, from the issuance of the summons for price determination . In the case of a provisional rent determination, interest runs from the issuance of the initiating summons for price determination when the landlord initiates the procedure, and from the notification of the first defense brief when the judge is seized by the tenant . Since 1 January 2020 , the decision of the commercial rent judge is enforceable by right (Article 514 Code of Civil Procedure).

The parties are required, within one month following the notification of the final decision, to draft a new lease under the judicially determined conditions, unless the tenant or the landlord exercises their option right and waives the renewal. The party exercising the option right is responsible for all costs, which are exclusively those incurred before exercising the option right . If the landlord has not, within this period, sent the tenant a draft lease in accordance with the decision, or in the absence of agreement within one month of this sending, the order or judgment setting the price or conditions of the new lease shall constitute the lease (Art. L. 145-57).

Finally, Article R. 145-29-1 of the Commercial Code, stemming from Decree No 2024-673 of 3 July 2024 , whose provisions came into force on 1 September 2024 , now provides the judge with the ability to decide that the parties be summoned to an amicable settlement hearing pursuant to Articles 774-1 to 774-4 of the Code of Civil Procedure. The text states that “this decision, recorded in the file, constitutes a measure of judicial administration.”

Cass. 3e civ., 10 July 2002, LawLex202400000114JBJ; 30 November 1982, LawLex202400000243JBJ.

CA Paris, 4 October 2017, LawLex202300011374JBJ.

Decree No 2024-673 of 3 July 2024 on various measures to simplify civil procedure and relating to regulated professions, OJ of 5 July 2024, Art. 3.

Decree No 2024-673 of 3 July 2024, Art. 17.

Cass. 3e civ., 10 November 2010, LawLex202100005939JBJ.

Cass. 3e civ., 25 January 2023, LawLex202300001547JBJ.

Cass. 3e civ., 11 May 2022, LawLex202200004357JBJ.

Saint-Denis de La Réunion, 2 November 2022, LawLex202300006002JBJ.

Cass. 3e civ., 23 February 1994, LawLex202300008876JBJ.

Cass. 3e civ., 9 September 2021, LawLex202100005935JBJ; 12 April 2018, LawLex202200000467JBJ.

Cass. 3e civ., 18 June 2014, LawLex202400000237JBJ.

Effective date of Decree No 2019-1333 of 11 December 2019, whose Article 3 specifies that the new Article 514 applies to proceedings initiated before the courts of first instance from 1 January 2020.

Commercial Leases/Business Goodwill

349. Judgment

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349. Judgment

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