Commercial Leases/Business Goodwill

The obligation to guarantee the tenant peaceful enjoyment of the leased premises imposed on the lessor by Article 1719, 3° of the Civil Code is not exclusive. Indeed, the Court of Cassation has established the principle that the lessor is not required to ensure, in the absence of an express contrary stipulation and in the absence of particular circumstances, the benefit of exclusivity in the lease …

Exclusivity obligation

The obligation to guarantee the tenant peaceful enjoyment of the leased premises imposed on the lessor by Article 1719, 3° of the Civil Code is not exclusive. Indeed, the Court of Cassation has established the principle that the lessor is not required to ensure, in the absence of an express contrary stipulation and in the absence of particular circumstances, the benefit of exclusivity in the leased building for the tenant's business . Thus, when a lease contains no exclusivity commitment, the tenant must be dismissed from their action for compensation for the damage resulting from the precarious lease, in the shopping center owned by the lessor, of spaces to itinerant merchants conducting an identical activity to theirs , as the letter from the director of a shopping center, who is not the representative of the lessor, cannot constitute recognition of an exclusivity tacitly admitted by the latter prior to the signing of the lease . The Court of Cassation acknowledges the existence of an implicit obligation on the lessor to protect the tenant from any competition when it arises from particular circumstances, which the tenant must demonstrate . Thus, it is through a necessary interpretation of the agreement binding the parties that trial courts consider that the lease stipulation, which enumerates the authorized commercial activities, imposes on the lessor the implicit obligation to protect the tenant from competition and the prohibition to grant in the future, in the same building, a lease intended for a similar business .

Even if no exclusivity clause is stipulated in the lease, the lessee is entitled to seek compensation when particular circumstances reveal the lessor's fraudulent intent to promote unfair competition. This is the case when the lessor has skillfully attempted, with fraudulent intent, to reinstall themselves in the very premises where they had conducted the business transferred to the lessee . The lessee may even obtain the annulment of the commercial lease when they substantiate the materiality of their error by demonstrating that they entered into the lease under the mistaken belief that it allowed them to conduct their business without competition in the shopping center, and that the prospect of a favorable situation, which was considered in determining the lease price, constitutes a substantial quality of the leased property, included in the contractual scope and free from uncertainty .

When the lessor commits to guaranteeing exclusivity to the lessee, they cannot rent a premises for the installation of an identical business, nor engage in the same activity. Thus, the lessor of a premises located in a shopping center, intended for pharmaceutical office activity, cannot, without violating the exclusivity clause, grant a lease in a premises within the center intended for parapharmacy activity . The exclusivity clause, whose validity is subject to its being limited in time or space , must be interpreted restrictively . In the event of a lease renewal offered by the lessor “under the same terms and conditions as the previous lease except for the rent amount,” judges consider that the exclusivity clause is not limited to the duration of the first lease , which is not the case when the lease agreement expressly refers to the expiration of the activity-limiting clause at the end of the lease . The lessee, who benefits from an exclusivity clause, can require the lessor to enforce this clause with other tenants, even if they are not parties to the contract . The violation by the lessor of such a clause constitutes a manifestly unlawful disturbance, for which they may be ordered under penalty to cease the activity in question . It matters little that a new lessor has acquired the rights of the former lessor, as their contractual liability may be engaged as long as the violation of the contractual activity-limiting clause continues . The trial court cannot base its decision to reject a lessee's request to prohibit another tenant in the same building from engaging in a similar activity on different manufacturing methods . However, it has been considered that in the presence of an activity-limiting clause, which prohibits the lessor from renting or making available more than two premises in the same shopping arcade for a primary perfumery activity, the subsequent rental of a premises not having perfumery as its primary activity does not constitute a violation by the lessor of their contractual obligations, even if there is a sales area dedicated exclusively to perfumery in this premises .

The Court of Cassation considers that when, under the legislation in force at the time of the agreement, it was impossible for the lessor to enforce the exclusivity commitment against the tenant of a premises in its shopping center, the amount paid in consideration for this exclusivity must be returned to the latter, as their obligation to pay this amount is without cause .

Finally, a non-compete clause may be included in the lease, requiring the tenant not to compete with another business , without preventing them from requesting partial despecialization .

Cass. 3e civ., 16 October 1985, LawLex202200001769JBJ. LawLex202100005559JBJ, LawLex202100005598JBJ. 

Cass. 3e civ., 4 December 1991, LawLex202100005596JBJ. 

Cass. com., 5 October 1981, LawLex202200001766JBJ. 

CA Toulouse, 20 November 2012, LawLex202200001777JBJ. 

Cass. 3e civ., 4 May 2006, LawLex202100004580JBJ. 

Cass. 3e civ., 11 October 2018, LawLex202100005601JBJ. 

Cass. 3e civ., 9 November 1976, LawLex202200010233JBJ. 

CA Toulouse, 20 November 2012, LawLex202200001777JBJ.

Cass. com., 5 October 1981, LawLex202200001766JBJ.

Cass. 3e civ., 3 May 2007, LawLex202100005599JBJ. 

Cass. 3e civ., 15 February 2012, LawLex202100005600JBJ. 

Cass. com., 2 July 1991, LawLex202100005559JBJ, previously: in this case, the lease did not include any clause guaranteeing the tenant exclusivity for restaurant activities in a shopping center, but stipulated that any modification of its clauses could only result from a written and express document from the landlord or their authorized agent.

CA Caen, 26 January 2012, LawLex202200010234JBJ.

Cass. 3e civ., 19 May 1971, LawLex202200010231JBJ. Also see CA Colmar, 11 March 1998, No 96/01563.

Ass. Plén., 29 May 1970, LawLex202200010232JBJ: in this case, the trial court found that after transferring his business, to which the tenant is now entitled, the landlord, also the owner of the building, rented him part of the commercial premises where he operated the said business, without any particular guarantee of exclusivity, and that he later began selling the same items again in the premises he retained, and that the layout of the premises, which are only separated by a narrow partition and have a common sign, gives the appearance that the two stores form a single one.

Cass. 3e civ., 2 October 2013, LawLex202100003267JBJ.

Cass. 3e civ., 28 January 2021, LawLex202100006093JBJ.

Cass. 3e civ., 7 April 1993, LawLex202100006059JBJ.

Cass. 3e civ., 8 January 1997, LawLex202100005597JBJ.

Commercial Leases/Business Goodwill

105. Exclusivity obligation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

105. Exclusivity obligation

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise