Commercial Leases/Business Goodwill

When the business is integrated into a larger commercial complex, the question of ownership of the business and clientele raises the issue of the tenant's autonomy within this complex. Thus, beyond the requirement of a distinct clientele, case law requires that the tenant demonstrate management autonomy to benefit from the status of commercial leases . Therefore, a tenant operating within a shoppi …

Integrated commerce.

When the business is integrated into a larger commercial complex, the question of ownership of the business and clientele raises the issue of the tenant's autonomy within this complex. Thus, beyond the requirement of a distinct clientele, case law requires that the tenant demonstrate management autonomy to benefit from the status of commercial leases . Therefore, a tenant operating within a shopping center does not have its own clientele if the center imposes its opening and closing hours . Similarly, the tenant of a crepe stand installed on the covered terrace of a café, who sells crepes to the café's customers as well as passersby but depends on the café's opening and closing hours, does not have any management autonomy , nor does the mobile rotisserie stationed in a space located in a store's parking lot, which depends on its infrastructure and must adhere to its opening hours . Conversely, the merchant operating in a premises located outside a supermarket, adjacent to it, has a personal clientele attracted by its location and the specialties it offers for sale .

To assess management autonomy, courts evaluate the existence of “constraints incompatible” with the free exercise of the activity, which must allow the lessee to gather a personal clientele around the rented premises . Thus, the commercial lease protection mechanism applies to a store located in a hotel, which is accessible to a clientele other than that of the hotel, and whose internal regulations do not constitute an effective hindrance to its commercial activity . Similarly, the constraints imposed by the concept of selling in a high-quality environment are not incompatible with the free exercise of the tenant's operation, as long as they have their own clientele within the shopping center in question, assume the risks of their operation alone, have their own staff, benefit from a cash register service, and pay their charges . This is not the case, however, when the restaurant service hours of the lessee are determined by a hotel leasing company that gives prior approval for the closure of the restaurants, has a real right of control over the site's employees, and takes on numerous services, such as utilities, electricity, taxes, maintenance, and repair of fixtures concerning the premises assigned to the tenant operator's service, as the constraints thus imposed are incompatible with the free exercise of the activity .

In all cases, it is not necessary for the personal clientele of the merchant to have a predominant character compared to that of the main operator to whom they are attached .

Cass. 3e civ., 5 April 1995, LawLex202100001320JBJ; Also see for an opposite solution, Cass. 3e civ., 24 January 1996, LawLex202100001279JBJ: a landlord commits fraud to evade the application of provisions relating to commercial leases by falsely designating as sites, commercial premises with a storefront and an independent entrance, while contractually stipulating that the tenant would act at their own risk and peril and that no time constraints would be imposed on them, allowing full management autonomy while having their own clientele, distinct from that of the supermarket.

Cass. com., 3 May 1993, LawLex202100001346JBJ; Cass. 3e civ., 15 June 2004, LawLex202100001283JBJ; Cass. 3e civ., 15 October 2014, LawLex202100001327JBJ.

Cass. 3e civ., 1 October 2003, LawLex202100001347JBJ, in this case, the café operator provided the water and electricity, the kitchen instruments, and the ingredients necessary for making crêpes.

Cass. 3e civ., 23 June 2016, LawLex202100001368JBJ.

Cass. 3e civ., 1 December 1976, LawLex202100001273JBJ.

Cass. 3e civ., 19 November 2015, LawLex202100001365JBJ, previously cited, in this case, the merchant alone assumes the risks of their operation, employs their own staff, benefits from a cash service, and pays their expenses.

Cass. 3e civ., 19 January 2005, LawLex202100001326JBJ.

Cass. 3e civ., 19 November 2015, LawLex202100001365JBJ; Cass. civ. 3e, 15 October 2014, LawLex202100001327JBJ; 19 November 2015, LawLex202100001365JBJ.

Cass. 3e civ., 5 September 2012, LawLex202100001363JBJ.

Cass. 3e civ., 19 March 2003, LawLex202100001430JBJ, regarding the operation of a chalet intended for the sale of “snacks” and drinks whose clientele consists, apart from that of the mechanical lift, of cross-country skiers, hikers, snowshoe walkers, and horseback riding enthusiasts.

Commercial Leases/Business Goodwill

29. Integrated commerce.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

29. Integrated commerce.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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