Commercial Leases/Business Goodwill

The implementation of the escalator clause is automatic, unlike the statutory triennial review provided for by Article L. 145-38 of the Commercial Code, which requires the completion of a number of formalities. If the fact that an amendment to the commercial lease, in which the parties have agreed that the rent variation will only take effect after prior notification by the landlord, does not detr …

Automatic nature

The implementation of the escalator clause is automatic, unlike the statutory triennial review provided for by Article L. 145-38 of the Commercial Code, which requires the completion of a number of formalities. If the fact that an amendment to the commercial lease, in which the parties have agreed that the rent variation will only take effect after prior notification by the landlord, does not detract from the automatic nature of the review, which is by right and exempts the landlord from any request, the initial lease does not, however, contain an escalator clause when no periodicity for the variation has been agreed upon between the parties, due to the absence of one of the necessary parameters for an automatic variation  or when the clause only provides for a “rent review” without automatic adjustment of the latter .

Due to the automatic nature of the clause, silence or oversight, even if prolonged, does not, by itself, constitute an unequivocal indication of the landlord's intention to waive the benefit of the triennial rent indexation that has not been claimed from the tenant since the beginning . However, the action for payment of sums representing the rent indexation, determinable by applying the contractual stipulations, is subject to a five-year limitation period . It has also been ruled that the sudden demand for several years of indexation representing the equivalent of more than thirteen months of rent previously accepted without reservation, without even a proposal for installment over time and under the threat of almost immediate termination of a lease executed without incident for ten years, is of a brutal nature incompatible with the good faith that must govern the execution of agreements . Finally, the landlord, who sues the tenant for the balance remaining due on the rents after applying the indexation clause, must not file a request for revision of the indexed rent, but a request for payment of rent arrears automatically updated according to the mobile indexation clause stipulated in the lease .

CA Nancy, 9 April 2014, LawLex202100004672JBJ.

CA Douai, 27 June 2024, LawLex202400005046JBJ.

CA Angers, 28 February 2017, LawLex202300004409JBJ.

Cass. 3e civ., 15 September 2010, LawLex202300004410JBJ.

CA Angers, 28 February 2017, LawLex202300004409JBJ, previously mentioned.

Cass. 3e civ., 28 November 2019, LawLex202100004779JBJ.

Commercial Leases/Business Goodwill

139. Automatic nature

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

139. Automatic nature

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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