Commercial Leases/Business Goodwill

Defined as an enclosed and covered space, the premises must also be permanent  and stable . Thus, a location whose situation and area can be modified at the landlord's discretion during the lease term cannot constitute premises within the meaning of the provisions governing commercial leases .
The Court of Cassation appeared to initiate, in the context of a refusal to transmit a priority question  …

Stable and permanent nature

Defined as an enclosed and covered space, the premises must also be permanent  and stable . Thus, a location whose situation and area can be modified at the landlord's discretion during the lease term cannot constitute premises within the meaning of the provisions governing commercial leases .

The Court of Cassation appeared to initiate, in the context of a refusal to transmit a priority question of constitutionality, a jurisprudential evolution favoring the stability and permanence of the premises over its enclosed and covered nature. It thus considered that “it does not result from established case law that the application of Article L. 145-1 of the Commercial Code is subject to the requirement of an enclosed and covered premises and that an operating area is excluded if the allocated location is stable and permanent” . In a subsequent ruling, it reiterated its position by deeming erroneous the reasoning of the court of appeal excluding the application of Article L. 145-1 to a space open to the common areas of a shopping center .

Therefore, if it seems well established that the premises required by the provisions relating to the status of commercial leases must be an enclosed and covered space, and, at a minimum, have a stable and permanent character, other criteria may, possibly, be taken into account to grant the benefit of this status, such as management autonomy or the existence of a specific clientele .

Cass. 3e civ., 1 December 1976, LawLex202100001273JBJ, according to which a person who conducts their commercial activity in a permanent and covered structure is entitled to benefit from the status of commercial leases; Cass. civ. 3e, 1 June 2010, LawLex202100001282JBJ, which qualifies as premises subject to the provisions relating to the status of commercial leases, a well-defined location, not random or changing, with a metal shutter and a storage area equipped with a key.

Cass. 3e civ., 19 January 2005, LawLex202100001326JBJ, where the court considers that the status of commercial leases applies to leases of stable and permanent premises in which a business or artisanal establishment is operated; Cass. 1re civ., 30 March 2005, LawLex202100001284JBJ, decision according to which the premises, individualized and closed, whose use is not subject to time restrictions, can be invoked against the lessor as characterizing the condition of stable construction within the meaning of Articles L. 145-1 et seq. of the Commercial Code.

CA Paris, 28 April 2000, LawLex202100003608JBJ; Cass. civ. 3e, 20 February 1985, LawLex202100001302JBJ, according to which a location whose layout, situation, and area are left to the discretion of the lessor cannot be considered as premises subject to the status of commercial leases; Cass 3e civ., 9 February 1994, LawLex202100002538JBJ: the application of the status of commercial leases is subject to the existence of a lease concerning a building or premises, which excludes a location in a store of approximate surface area, which has been transferred and left to the discretion of the lessor; Cass. 3e civ., 5 April 1995, LawLex202100001320JBJ, decision according to which the contract that provides the possibility for the lessor to modify the location occupied by the lessee does not fall under the status of commercial leases.

Cass. 3e civ., QPC, 20 March 2014, LawLex202100001308JBJ. On the issue of the requirement for an enclosed and covered premises, some authors believe that the Court of Cassation has not abandoned this requirement, while other authors see it as a renunciation in favor of an “operating area”, the essential being the criteria of stability and permanence of the leased premises.

Cass. 3e civ., 15 October 2014, LawLex202100001327JBJ.

Cass. 3e civ., 24 January 1996, LawLex202100001279JBJ, according to which a landlord commits fraud by falsely designating as spaces, commercial premises with a storefront and an independent entrance; Cass. 3e civ., 5 April 1995, LawLex202100001320JBJ, which considers that a contract allowing the landlord to change the location occupied by the tenant within a shopping center does not fall under the status of commercial leases.

Commercial Leases/Business Goodwill

11. Stable and permanent nature

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

11. Stable and permanent nature

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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