Commercial Leases/Business Goodwill

The obligations of the lessee fall under the provisions of the Civil Code governing the lease contract. According to Article 1728, 3° of the Civil Code, the lessee is obligated to pay the rent at the agreed due dates until the end of the lease, without the lessor having to justify any damage . When retaining enjoyment of the premises, the tenant cannot avoid paying the rent or invoke the exception …

Rents

The obligations of the lessee fall under the provisions of the Civil Code governing the lease contract. According to Article 1728, 3° of the Civil Code, the lessee is obligated to pay the rent at the agreed due dates until the end of the lease, without the lessor having to justify any damage . When retaining enjoyment of the premises, the tenant cannot avoid paying the rent or invoke the exception of non-performance on the grounds of discomfort or even indecency, or by claiming the non-performance of work incumbent on the lessor, unless it is justified that the rented premises have become unfit for their intended use . When the lessor transfers the rented premises, the rents due after the sale are owed to the transferee and not to the transferor . The principal debtor of the rents is, in principle, the lessee, although a third party acting on their behalf may also settle the payment.

In the event of multiple tenants, in the absence of a joint and several liability clause, the landlord can only demand payment of the rent from them in proportion to their share of the debt (Art. 1309, para. 2, Civil Code), any possible rent payment agreement between the tenants being unenforceable against him . It is different when a joint and several liability clause is included in the lease, noting that such liability is presumed in commercial matters . Joint and several liability among co-tenants allows the landlord to demand payment of the entire rent from the jointly liable tenant of his choice, releasing them all towards him (Art. 1313 Civil Code). The latter then has recourse against the other tenants in proportion to their own share (Art. 1317, para. 2, Civil Code).

The parties may, pursuant to Article 260 of the General Tax Code, subject the commercial rent to value-added tax (VAT). The subjection must be expressly stipulated in the commercial lease . This is not the case for the lease clause that stipulates that the tenant must “pay their personal, movable, and business taxes, as well as taxes and levies of any kind that are directly claimed from tenants or charged to them,” which only concerns taxes owed by the tenant excluding VAT , or the clause by which the tenant undertakes to pay “taxes and contributions of any kind levied or to be levied on the rented property, including property tax, city and police charges, street cleaning, sewer charges, garbage collection, and also any other taxes that may be created to replace or compensate those existing today” . Similarly, the fact that a landlord submits to VAT by making VAT declarations on the rents and corresponding payments, and by separating the principal rent and VAT in the statement attached to the payment order issued, is not sufficient to prove the tenant's knowledge of the landlord's choice to opt for VAT subjection, even when the tenant produces a rent notice issued by the landlord's agent showing the principal rent, charges, and the annual contribution on rental income, but not the VAT .

Cass. 3e civ., 23 May 2012, LawLex202100004639JBJ: in this case, the rent debt cannot be terminated on the day the keys are returned by the lessee when they vacated the leased premises before the effective date of the notice.

CA Orléans, 15 February 2024, LawLex202400001616JBJ; CA Montpellier, 2 April 2024, LawLex202400002870JBJ; CA Paris, 23 May 2024, LawLex202400003900JBJ; CA Paris, 30 May 2024, LawLex202400004035JBJ.

Cass. 3e civ., 10 February 2004, LawLex202200010811JBJ.

CA Versailles, 26 November 1999, No 8778/97, regarding a residential lease.

Cass. com., 21 April 1980, No 78-14.765, according to which the provisions of Article 1202 of the Civil Code (current Art. 1310 Civil Code) are not applicable in commercial matters.

CA Paris, 13 January 2010, LawLex202200011412JBJ; CA Paris, 27 June 2024, LawLex202400005042JBJ.

Cass. 3e civ., 27 June 2001, LawLex202100004568JBJ.

CA Paris, 13 January 2010, LawLex202200011412JBJ, préc.

CA Paris, 27 June 2024, LawLex202400005042JBJ, op. cit.

Commercial Leases/Business Goodwill

109. Rents

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109. Rents

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Les décisions de justice citées dans ce paragraphe :

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