Commercial Leases/Business Goodwill

Pursuant to Article L. 145-1, I of the Commercial Code, “the provisions of this chapter,” in reference to the rules relating to the status of commercial leases, apply to “leases of buildings or premises,” to the exclusion of any movable property. It follows that the regime of commercial leases is intended to govern a contractual relationship necessarily involving a lease.
If the application of the …

Requirement of lease

Pursuant to Article L. 145-1, I of the Commercial Code, “the provisions of this chapter,” in reference to the rules relating to the status of commercial leases, apply to “leases of buildings or premises,” to the exclusion of any movable property. It follows that the regime of commercial leases is intended to govern a contractual relationship necessarily involving a lease.

If the application of the status of commercial leases is subject to the existence of a lease , it is not essential for it to be in written form , which is not a condition for the validity of commercial leases. When the lease takes the form of an oral agreement, the common intention of the parties must be established. Thus, a promise to grant a commercial lease by the lessor constitutes a lease as soon as there is an agreement between the parties on the subject matter and the price . The existence of that agreement rests on the sovereign assessment of the trial courts, which will readily dismiss the classification of a commercial lease in the absence of such an agreement .

Articles L. 145-1 et seq. of the Commercial Code do not define the concept of a lease, the substance of which must be sought within the provisions of the Civil Code relating to leasing.

Article 1709 of the Civil Code defines the lease of things as a “contract by which one of the parties undertakes to allow the other to enjoy a thing for a certain time, and for a certain price which the latter undertakes to pay.”

Article 1719 of the Civil Code imposes on the lessor two essential preliminary obligations to the very principle of enjoyment of the thing. The lessor must, on the one hand, “deliver the leased thing to the lessee” and, on the other hand, “maintain this thing in a condition to serve the use for which it was leased.” In other words, the lessor must be able to put the lessee in possession of the leased property and allow them to use it for its intended purpose. While Article 1719 of the Civil Code aims for the peaceful enjoyment of the property by the lessee throughout the lease term, case law has clarified its scope to establish the principle of free and exclusive enjoyment. Thus, an agreement signed between the parties concerning the provision of premises cannot be defined as a lease in the absence of free disposition for exclusive use of the premises .

Article 1728 of the Civil Code imposes the obligation on the lessee “to pay the rent at the agreed terms,” and “to use the leased property reasonably, and according to the purpose given to it by the lease.” The lease necessarily constitutes a contract for consideration. The tenant has the right to enjoy a property in return for which a price must be paid. Thus, the existence of a commercial lease necessarily implies, according to the Court of Cassation, the stipulation of a price . Therefore, the classification of a commercial lease is not possible when the lessee has benefited from a property made available without paying rent . Furthermore, if the stipulation of a price is a required condition for a lease to exist, which necessarily implies agreement between the parties on the property and the rent , the rent price must not be derisory .

CA Versailles, 13 June 2024, LawLex202400004537JBJ, which specifies that the benefit of the status of commercial leases requires the existence of a lease contract within the meaning of Article 1709 of the Civil Code.

Cass. 3e civ., 12 February 1985, LawLex202100001248JBJ.

Cass. 3e civ., 28 May 1997, LawLex202100001249JBJ.

Cass. 3e civ., 18 March 2008, LawLex202100001304JBJ.

Cass. 3e civ., 11 January 2006, LawLex202100001250JBJ (regarding an agreement for the provision of a swimming pool basin for the benefit of a water aerobics instructor on a freelance basis, shared with other users and with schedules that can be modified at any time).

Cass. 3e civ., 9 March 2010, LawLex202100001251JBJ.

Cf. CA Paris, 9 June 2004, LawLex202100003619JBJ.

Cass. 3e civ., 4 March 2008, LawLex202100001252JBJ, Rev. loyers 2008. 270.

Cass. 3e civ., 7 July 2015, LawLex202100001253JBJ: if it is demonstrated, this derisory nature of the price could constitute grounds for the invalidity (nullité) of the lease.

Commercial Leases/Business Goodwill

6. Requirement of lease

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6. Requirement of lease

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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