Commercial Leases/Business Goodwill

If it is impossible to exclude the protective mechanism of commercial leases when it is automatically applicable to the lease contract , the lessor and lessee may mutually agree to conventionally opt for the application of the commercial lease status to govern their rental relations, even if the conditions required by Articles L. 145-1 et seq. of the Commercial Code to benefit from the status are not met.

Having long refused to recognize this possibility , the Court of Cassation made a reversal in a judgment of 6 July 1982  and admitted the contractual extensions of the status of commercial leases.

This ability to conventionally subject the lease to the regime of commercial leases is limited when an imperative regime is applied to the lease, which cannot be waived. This is the case for leases of premises for residential use, for which the legal regime of residential leases applies by law , rural leases, leases involving property dependent on the public domain, or mixed-use leases for professional and residential purposes as they result from Law No 89-462 of 6 July 1989. However, since the Macron , Article L. 145-2, I, 7° of the Commercial Code allows, for professional leases, to derogate from Article 57 A of Law No 86-1290 when the parties have conventionally subjected their relations to the status of commercial leases .

The conventional extension of the status requires, on the one hand, that the parties to a lease contract have unequivocally expressed their intention in this regard and, on the other hand, that they specify its scope.

Cass. 3e civ., 23 November 2010, LawLex202100002966JBJ: A lessee cannot validly claim a voluntary extension of the status of commercial leases when the lease is, by the nature of the commercial purpose given by the parties to the constructions built on the leased land and in accordance with the provisions of Article L. 145-1, I, 2° of the Commercial Code, subject to the status.

Cass. 3e civ., 6 July 1982, LawLex202100001472JBJ.

Law No 89-462 of 6 July 1989 aimed at improving rental relations and amending Law No 86-1290 of 23 December 1986.

Law No 2008-776 of 45 August 2008 on the Modernization of the Economy.

Conversely, paragraph 6 of Article 57 A provides that “the parties may derogate from this Article under the conditions set out in 7° of I of Article L. 145-2 of the Commercial Code.”

48. Conventional extension