Commercial Leases/Business Goodwill

Articles L. 145-4 and L. 145-9 of the Commercial Code provide for a minimum notice period of six months to terminate the contract with the other party. Thus, the parties to the commercial lease are required to give notice at least six months before the contractually fixed end of the lease (Article L. 145-9, para. 1, Commercial Code), on the last day of the calendar quarter when the lease has been renewed by tacit extension (Article L. 145-9, para. 2, Commercial Code), before the end of the three-year period (Article L. 145-4, paras. 2 and 3, Commercial Code) , or, for the lessee, six months before retirement or disability pension (Article L. 145-4, para. 4, Commercial Code) . Since the six-month period is a minimum period, the parties may terminate the contract in advance as long as the notice period is longer than six months and there is no abuse of rights . The parties may even contractually agree to a notice period longer than the legal period .

The period, expressed in months, expires at midnight on the day of the last month that bears the same date as that of the act that starts the period. Thus, for a lease expiring on 30 June at midnight, notice may be given on the preceding 30 December . In the absence of an identical date, the period expires on the last day of the month. Notice given on 31 December starts a six-month notice period that expires on the following 30 June .

Before the entry into force of the decree of 11 March 2016 concerning the simplification of formalities in commercial law, the notice given for the triennial term by registered letter with acknowledgment of receipt was governed by Article 668 of the Code of Civil Procedure, under which the date of notification by post is, for the sender, the date of dispatch and, for the recipient, the date of receipt of the letter. Thus, a letter sent on the last day of the period within which notification must be made is valid if it is presented by postal services to the recipient authorized to receive it, with the date of receipt by the recipient being irrelevant. If the triennial term of the lease expired on 31 July 2016, the tenant's notice sent on 31 January 2016 by registered letter complied with the six-month period imposed by Article L. 145-4 . Now, Article R. 145-38 of the Commercial Code, established by the 2016 decree, provides that the date of notification is, for the lessee, the date of dispatch of the letter and, for the recipient lessor, the date of first presentation of the letter, and that when the letter could not be presented to its recipient, the procedure must be renewed by extrajudicial act.

When the six-month period expires on a Saturday, Sunday, or a public holiday, it cannot be extended to the next working day. The Court of Cassation considers that the extension provided for in Article 642 of the Code of Civil Procedure does not apply when an act must be performed before the expiration of a period and that if the notice is to take effect on 30 September of a year, the last day of that month, it must be served no later than 31 March of the same year .

Notice given for an early date, but within the six-month period before the expiration of the three-year period, takes effect at the first useful date after this notice. Notice given for the three-year term one and a half years before this term will only take effect at that term , or if the notice is given for a lease in the course of tacit renewal, on the last day of the civil quarter six months from the date of notice (Article L. 145-9, para. 2, Commercial Code). Indeed, the issuance of notice for a date prior to the expiration of the lease , or for an incorrect date , does not result in the notice being null, only its effect being postponed until the date for which it should have been given . Furthermore, in the absence of a request or defense that can be analyzed as a challenge, within two years following the date, even if incorrect, for which it is given, the notice takes effect on the indicated date .

Cass. 3e civ., 26 November 2013, LawLex202200003014JBJ.

CA Bourges, 9 October 2008, LawLex202200003789JBJ.

CA Paris, 27 January 2021, LawLex202200003003JBJ.

CA Grenoble, 22 February 2024, LawLex202400001793JBJ.

Cass. 3e civ., 23 September 2021, LawLex202100006346JBJ.

Paris, 20 June 2012, LawLex202200003431JBJ; Cass. 3e civ., 9 November 1981, LawLex202200002912JBJ.

Cass. 3e civ., 10 May 2001, LawLex202100003790JBJ.

Cass. 3e civ., 13 January 2004, LawLex202200002914JBJ.

Cass. 3e civ., 31 October 2006, LawLex202200002917JBJ.

Cass. 3e civ., 16 March 2023, LawLex202300009121JBJ.

Cass. 3e civ., 8 March 2018, LawLex202200002918JBJ.

Cass. 3e civ., 10 February 2015, LawLex202200002911JBJ.

Cass. 3e civ., 9 October 1996, LawLex202200002909JBJ.

202. Notice period