Commercial Leases/Business Goodwill

The parties may submit to the status of commercial leases a lease normally excluded from its scope of application if and only if this conventional extension results from their unequivocal intention to apply it . The agreement of wills may be express or implied. It is up to the trial court  to investigate  and assess sovereignly the intention of the parties.

The agreement is explicit when the part …

Unequivocal manifestation of intent

The parties may submit to the status of commercial leases a lease normally excluded from its scope of application if and only if this conventional extension results from their unequivocal intention to apply it . The agreement of wills may be express or implied. It is up to the trial court  to investigate  and assess sovereignly the intention of the parties.

The agreement is explicit when the parties have unequivocally expressed their intention to subject the lease to the regime of commercial leases. Thus, a lease is subject to the status of commercial leases when it involves premises for commercial use and the regime of commercial leases is expressly mentioned in the deed . The fact that a landlord signs a lease containing commercial provisions with a non-merchant characterizes their intention to extend the status of commercial leases . The same applies when the lease clearly and precisely stipulates that the lessee benefits from commercial property, even if they do not occupy all or part of the building themselves, and the landlord waives the right to refuse renewal . Conversely, the fact that a lease stipulates that the lessee must comply with the provisions related to the regime of commercial leases in the event of the addition of a related or complementary activity to that of an artist is not sufficient to reflect the parties' intention to apply the rules related to commercial leases to their relations . The mention of “commercial lease” in the rental contract, as well as the general reference to applicable legal provisions, is also not sufficient to express the parties' intention to confer certain prerogatives from the status of commercial leases to the lessee, such as the right to lease renewal . However, according to the Court of Cassation, when successive leases titled “commercial lease” contain clauses derogating from common law and identical to the status of commercial leases, the parties voluntarily subject their relations to the latter .

The agreement is tacit when the judge identifies acts or facts that implicitly demonstrate the parties' intention to subject their lease contract to the protective provisions of the Commercial Code regarding commercial leases, without this intention being clearly expressed through an explicit stipulation. Thus, the Court of Cassation has held that when a landlord is aware that the premises leased to the tenant are intended to be sublet in their entirety and the lease stipulates that the premises must be continuously used either by the tenant himself or by his subtenants, it is accepted that the parties intended to subject the lease to the status of commercial leases without making the operation of the premises by the principal landlord a necessary condition for its application .

Since the conventional extension of the status of commercial leases concerns a lessee who is, in principle, not eligible, the lessor may tacitly waive the right to invoke the cases of exclusion from the status, such as the absence of the lessee's registration in the trade and companies register or the operation of a business by the lessee on the leased premises. However, the lessor's mere knowledge of the lessee's lack of registration is not, by itself, sufficient to constitute an unequivocal waiver of this condition . The lessor's waiver of the right to invoke the lessee's non-compliance with the conditions for applying the status  is established by a body of evidence . Thus, the Court of Cassation upheld a court of appeal for finding a tacit but certain and informed waiver by a lessor, since the parties had unequivocally placed the lease under the regime of commercial leases, it was renewed twice following “commercial premises” notices, and the lessor wrote to the lessee that the law on commercial leases required him to send a notice six months in advance . Conversely, the fact that a lessor continued to knowingly collect, for nearly two years, the rents and charges paid directly by an assignee following the assignment of the lease right, to which he had expressed opposition, is not sufficient to constitute the lessor's unequivocal waiver of the right to invoke the irregularity of the assignment .

However, the case law appears reluctant to extend the status of commercial leases to contracts that do not expressly refer to it . In particular, the provisions of a lease and the renewal deed relating to the duration and triennial review, without any express reference to this status, and the mere mention, in the notices and the demand for payment issued by the lessor, of the texts applicable to commercial leases are not sufficient to characterize the unequivocal intention of the lessor to waive the conditions to which the benefit of the status of commercial leases is subject . The letter by which the lessor obliges the lessee to build on the land, the object of the lease, the clauses of the lease relating to the duration, the purpose of the premises, the installation of a sign, and the triennial review, as well as the summons seeking to set a new rent “under the renewed lease”  or the clauses of the lease relating to the designation of the leased property described as commercial premises, to the purpose of these premises authorizing the operation of a vegetarian restaurant and a food store, to the rent establishing its payment and setting in accordance with the provisions of the commercial lease regime, and to the obligation of the lessee to furnish the premises with furniture, fixtures, and merchandise and to keep them always open to the public and stocked .

Cass. 3e civ., 28 September 2005, LawLex202100001540JBJ.

CA Nîmes, 4th Commercial Chamber, 24 January 2025, No 22/04140, LawLex202500000891JBJ.

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

CA Nîmes, 4th Commercial Chamber, 24 January 2025, No 22/04140, LawLex202500000891JBJ: The landlord's mere knowledge of the tenant's lack of registration is not sufficient to establish their intention to waive the conditions of the status of commercial leases.

Cass. 3e civ., 23 November 2010, LawLex202200000778JBJ: A Court of Appeal legally justifies its decision by considering that a lease is subject to the status of commercial leases when the lessor was aware, during each successive lease, of the tenants' lack of registration in the trade and companies register and their failure to operate a business on the leased premises, and when the unequivocal intention of the contracting parties, at each renewal, to grant the tenants a right to renewal that the law did not allow them to demand, is established.

Cass. 3e civ., 8 December 1999, LawLex202100001479JBJ, according to which the letter by which the lessor obliges the lessee to build on the land, the subject of the lease, the clauses of the lease relating to the duration, the purpose of the premises, the installation of a sign, and the triennial review, as well as the summons seeking to set a new rent “under the renewed lease” are not sufficient to characterize the unequivocal intention of the lessor to waive the benefit of the conditions to which the application of the status of commercial leases is subject.

Cass. 3e civ., 19 April 2000, LawLex202100001484JBJ.

Cass. 3e civ., 30 May 2007, LawLex202100002983JBJ.

Cass. 3e civ., 14 November 1996, LawLex202100001473JBJ, having noted that the renewed lease includes, without express reference to the status of commercial leases, classic stipulations in the matter and observed that the lessor only issued notices with an offer of renewal upon the expiration of previous leases, a court of appeal may deduce that the lessor has not waived the right to invoke, at the end of the lease, a lack of registration in the trade and companies register and correctly holds that the tenant, not registered in this register, does not meet the conditions to benefit from the renewal of their commercial lease.

Cass. 3e civ., 6 July 2004, LawLex202100001490JBJ.

Cass. 3e civ., 8 December 1999, LawLex202100001479JBJ.

Cass. 3e civ., 20 March 1996, LawLex202100001478JBJ.

Cass. 3e civ., 14 May 2008, LawLex202200000683JBJ.

Cass. 3e civ., 1 July 2003, No 00-22.733 – LawLex202100001488JBJ.

Cass. 3e civ., 9 December 2008, LawLex202100001544JBJ, concerning a lease concluded for a term of nine years with a provision for a monthly rent adjustable at the end of each three-year period based on the variation of the construction cost index, which specifies that “the tenant may not, under any circumstances and for any reason, assign their right to this lease or sublet in whole or in part without the express and written consent of the owner, except to their successor in the same activity,” and includes a purpose clause stating that “the leased property may only be used by the tenant for training and practicing sports and physical culture activities, to the exclusion of any other type of activity.”

Cass. 3e civ., 20 June 1990, LawLex202200000714JBJ. – See however Cass. 3e civ., 20 October 2016, LawLex202100001550JBJ, which considered that if the option for conventional extension of the status of commercial leases requires the parties to unequivocally express their intention to be governed by this regime, the mention in the contract that “the lessee will benefit from the status of commercial property,” as well as references to the Commercial Code, are not sufficient to characterize a waiver made knowingly and without ambiguity to the mandatory provisions of Article 57 A of the law of 23 December 1986.

Cass. 3e civ., 18 January 2005, LawLex202100001539JBJ.

Cass. 3e civ., 6 May 2014, LawLex202100001546JBJ, in this case, the landlord had the practice of entering into commercial leases with doctors notwithstanding the tenant's professional activity of which he was aware.

Cass. 3e civ., 4 May 2011, LawLex202200000715JBJ.

Commercial Leases/Business Goodwill

49. Unequivocal manifestation of intent

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49. Unequivocal manifestation of intent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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