Commercial Leases/Business Goodwill

Article R. 145-26 of the Commercial Code first requires that the brief be signed by the parties' lawyers. The question arose regarding the impact of the lack of signature on the validity of the brief. At a time when the regulations did not require a signature by the lawyers but provided for a signature by the parties or their representatives, the Court of Cassation had specified that the signature of the brief is not identified as an act of representation in court . It deduced that the lack of signature of the brief does not constitute a substantive irregularity . The requirement for signature by the parties' lawyers introduced by Decree No 2019-1333 of 11 December 2019 does not seem to alter the scope of this solution. The signatory of the brief certifies that the copies of the documents that the parties deem necessary to annex are in conformity with the original.

The text then specifies that the memorandum must be notified and sets the conditions for the validity of the notification. The memorandum must be notified to each of the parties . The party to whom the landlord must notify their memorandum is their contracting party, the leaseholder, or their heirs . If it is addressed not to the tenant legal entity, but to a natural person who was no longer the leaseholder since its transfer, the judges consider that no memorandum has been notified to the tenant before the summons . In the case of multiple landlords, it must be notified to each of them under penalty of inadmissibility . The notification is validly made to the building manager .

The memorandum must be notified by registered letter with acknowledgment of receipt . It is sufficient that the recipient is able to collect the letter presented at their home, as actual delivery is not required . Service by bailiff's writ of the memorandum by the lessor to the lessee does not render the procedure irregular . Similarly, when, after serving a memorandum by court act, the lessors have notified their tenant by registered letter with acknowledgment of receipt of a memorandum free from any irregularity, the initial irregularity is thus remedied .

Cass. 3e civ., 10 February 1981, LawLex202400000128JBJ.

Cass. 3e civ., 10 February 1981, LawLex202400000128JBJ; 13 February 2002, LawLex202400000113JBJ.

Cass. 3e civ., 22 January 2013, LawLex202400000125JBJ; 17 September 2008, LawLex202400000120JBJ.

Cass. 3e civ., 19 December 2000, LawLex202400000129JBJ, which emphasizes that the claimant must, on pain of inadmissibility of the claim, notify their brief to the opposing party prior to referring the matter to the judge.

Cass. 3e civ., 4 May 2006, LawLex202400000131JBJ.

Cass. 3e civ., 18 November 1998, LawLex202400000141JBJ: in this case, the lessor could not be unaware of the assignment of the lease in which he had participated.

Cass. 3e civ., 3 July 2013, LawLex202300014673JBJ.

See Cass. 3e civ., 16 October 2013, LawLex202300014676JBJ, which recalls the rule set by Article R. 145-26.

Cass. 3e civ., 16 October 2013, LawLex202300014676JBJ; 3 July 2013, LawLex202300014673JBJ.

Cass. 3e civ., 16 October 2013, LawLex202300014676JBJ.

Cass. 3e civ., 16 October 2013, LawLex202300014675JBJ.

346. Signature/Notification