Commercial Leases/Business Goodwill

When the parties choose to extend the provisions of commercial leases to their rental contract, the question arises regarding the scope of the applicable regime and its effects on the rental relationship. The Plenary Assembly of the Court of Cassation addressed this in a judgment dated 17 May 2002 , which established that, in the case of contractual submission to the status of commercial leases, c …

Scope of the Conventional Extension

When the parties choose to extend the provisions of commercial leases to their rental contract, the question arises regarding the scope of the applicable regime and its effects on the rental relationship. The Plenary Assembly of the Court of Cassation addressed this in a judgment dated 17 May 2002 , which established that, in the case of contractual submission to the status of commercial leases, clauses contrary to public policy provisions, such as those of Article L. 145-9, para. 5, are null and void.

Articles L. 145-15 and L. 145-16 of the Commercial Code enumerate a number of mandatory rules. According to the first of these texts, “clauses, stipulations, and arrangements that have the effect of defeating the right of renewal established by this chapter or the provisions of Articles L. 145-4, L. 145-37 to L. 145-41, the first paragraph of Article L. 145-42, and Articles L. 145-47 to L. 145-54, are deemed unwritten, regardless of their form.” In addition to the right to lease renewal, Article L. 145-15 thus targets the initial lease duration and substantive rules regarding notice, rules on rent revision, the condition of the premises and rental charges, as well as the termination of the lease contract, and finally, the provisions concerning despecialization. Article L. 145-16 of the Commercial Code, for its part, deems unwritten “regardless of their form, agreements aiming to prohibit the tenant from assigning their lease or the rights they hold under this chapter to the purchaser of their business or enterprise,” a principle to which the parties cannot derogate.

To this legal enumeration are added the texts assimilated by case law to public policy provisions, such as Article L. 145-12, para. 1, of the Commercial Code regarding the duration of the renewed lease , Article L. 145-9, para. 5, on the formal conditions related to the notice , as well as the tenant's right of first refusal considered in Article L. 145-46-1 .

It should be noted that the annulment of a contentious clause, contrary to a mandatory provision, cannot result in the annulment of the entire lease contract, even if the parties have agreed on the essential nature of this clause without which they would not have contracted .

Finally, the conventional submission of the lease to the status of commercial leases aims to allow its application when all the legal conditions that impose it are not met . The tenant's registration in the trade and companies register is no longer an imperative condition for their right to renewal , and the landlord de facto waives the right to invoke it when the parties have opted for the application of the status . The same applies to the absence of operation of the business by the tenant in the leased premises .

Ass. plén., 17 May 2002, LawLex202100002970JBJ : the decision must be overturned which holds that in the case of conventional submission to the status of commercial leases, the notion of public policy does not intervene, and that if the will of the parties as expressed in the agreement must apply, the rule of Article L. 145-9, para. 5 of the Commercial Code imposing under penalty of nullity that notice be given by extrajudicial act does not have to be, the clauses of the lease providing otherwise.

Cass. 3e civ., 2 October 2002, LawLex202100003795JBJ.

Ass. plén., 17 May 2002, LawLex202100002970JBJ.

Cass. 3e civ., 28 June 2018, LawLex202200000872JBJ.

Cass. 3e civ., 31 January 2001, LawLex200200004373JBJ, according to the ruling, the annulment of a clause contrary to a mandatory provision does not result in the annulment of the entire lease as long as it infringes, due to its general and absolute nature, on the tenant's right to renewal without their consent, and deciding otherwise would ensure, to the benefit of the landlord, due to the threat of annulment of the entire lease, the perpetuation of a clause prohibited by a mandatory provision.

Cass. 3e civ., 21 May 2014, LawLex202100002969JBJ.

Cass. 3e civ., 9 February 2005, LawLex202100002968JBJ; Also see Cass. civ. 3e, 1 July 2003, LawLex202100002967JBJ, according to which a lessee is entitled to renewal or failing that to the payment of eviction compensation as soon as the lessor has agreed at the conclusion of the lease to submit to the status of commercial leases, even if at the time of renewal, the lessee, who is not registered in the trade and companies register, does not meet the conditions referred to by the texts to benefit from commercial property.

Cass. 3e civ., 19 April 2000, LawLex202100001484JBJ; See also Cass. 3e civ., 28 May 2020, LawLex202100002971JBJ: A landlord waives the right to invoke the registration condition when it is stipulated in the lease, the express intention of the parties to submit the agreement to the status of commercial leases, as it results from Articles L. 145-1 of the Commercial Code and subsequent texts.

Commercial Leases/Business Goodwill

50. Scope of the Conventional Extension

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50. Scope of the Conventional Extension

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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