Commercial Leases/Business Goodwill

The notice constitutes an irrevocable act, which cannot be unilaterally withdrawn . Thus, the notice remains valid, even if it was mistakenly issued by the judicial commissioner, who acted contrary to the tenant's intention to request the renewal of their lease. Indeed, regardless of the severity of the alleged irregularities, only defects in form causing harm or substantive irregularities exhaust …

Withdrawal of the notice

The notice constitutes an irrevocable act, which cannot be unilaterally withdrawn . Thus, the notice remains valid, even if it was mistakenly issued by the judicial commissioner, who acted contrary to the tenant's intention to request the renewal of their lease. Indeed, regardless of the severity of the alleged irregularities, only defects in form causing harm or substantive irregularities exhaustively listed in Article 117 of the Code of Civil Procedure, namely those related to lack of capacity or authority, affect the validity of the notice .

The waiver of the benefit of the notice is nevertheless possible, as long as the parties express their unequivocal intention to continue the lease. Thus, the Court of Cassation considers that the tenant's retention in the premises beyond the effective date of the notice they themselves issued is interpreted as a waiver of the benefit of this notice, if the circumstances unequivocally establish their intention to waive, which is not presumed . Similarly, a tenant who issues a notice for a triennial term, engages in negotiations with the landlord to obtain an extension of the effect of their notice, remains in the premises, and pays the rent, waives the benefit of their notice . Conversely, when exchanges between the contracting parties reveal a disagreement on continuing the lease under previous conditions, neither the email indicating that the notice is a purely formal precautionary measure, nor the retention in the premises beyond the effective date of the notice, linked to the possibility of concluding a new contract under more advantageous conditions, nor the habitual use of the term “rent” in the parties' correspondence to designate the sums due in return for remaining in the premises, can reflect an unequivocal intention of the tenant to continue the lease . Similarly, neither the fact that an occupant has applied the indexation provided in the lease to the payments they continued during the occupancy period, nor the fact that they issued a new notice to the landlord, can be interpreted as indications of a waiver of the benefit or effects of the notice issued by the occupant during the first triennial period .

The landlord may also expressly and unequivocally waive the benefit of the notice . The landlord's intention may be inferred from the notification, within the two-year period from the effective date of the notice, of a revised rent according to the terms of the lease for a future period . The Court of Cassation, however, has held that the issuance, during a limited period, of “rent” receipts and the application of the revision clause stipulated in the contract based on variations in the construction cost index cannot establish the landlord's express and unequivocal intention to waive the benefit of the notice he has given .

Cass. 3e civ., 27 June 1984, LawLex202200002873JBJ.

Cass. 3e civ., 30 September 2009, LawLex202200002875JBJ; 5 June 2013, LawLex202300009516JBJ.

Cass. 3e civ., 8 October 1997, LawLex202200002879JBJ; 26 January 2022, LawLex202200008572JBJ.

Cass. 3e civ., 30 March 2017, LawLex202200002880JBJ.

Cass. 3e civ., 26 January 2022, LawLex202200008572JBJ.

CA Riom, 29 May 2024, LawLex202400004014JBJ.

Cass. 3e civ., 18 December 2002, LawLex202200002583JBJ.

Cass. 3e civ., 15 September 2015, LawLex202200002882JBJ.

Cass. 3e civ., 9 February 1994, LawLex202200002876JBJ.

Commercial Leases/Business Goodwill

207. Withdrawal of the notice

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Les notions juridiques connexes

207. Withdrawal of the notice

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise