Commercial Leases/Business Goodwill

Article L. 145-1, I of the Commercial Code specifies that the business, whose operation is necessary for the application of the status of commercial leases, may belong “either to a merchant or an industrialist registered in the trade and companies register, or to the head of a company registered in the trade directory, whether or not performing commercial acts.” When the parties have stipulated th …

Conducting a commercial, industrial, or artisanal activity.

Article L. 145-1, I of the Commercial Code specifies that the business, whose operation is necessary for the application of the status of commercial leases, may belong “either to a merchant or an industrialist registered in the trade and companies register, or to the head of a company registered in the trade directory, whether or not performing commercial acts.” When the parties have stipulated that the lessee “may conduct all professional, commercial, or industrial activities on the premises” and operates a business there, the judges cannot exclude the application of Articles L. 145-1 and following of the Commercial Code .

The benefit of the status therefore requires the exercise of a commercial, industrial, or artisanal activity. A person engages in a commercial activity who, according to Article L. 121-1 of the Commercial Code, performs commercial acts and makes it their habitual profession, with Articles L. 110-1 and L. 110-2 of the same code deeming a number of activities as commercial acts. Thus, activities considered to be of a commercial nature falling under the status of commercial leases include purchases and sales , such as the sale of sandwiches and drinks in a chalet, akin to a restaurant business , or activities intended to generate profit in a competitive sector, such as funeral services . Conversely, real estate rental  does not constitute such an activity, unless the lessee provides services on the rented premises , the acquisition of interests in all legal entities, which is not a commercial activity by nature , or liberal professions  for which leases are subject to the provisions of Article 57 A of the law of 23 December 1986 relating to professional leases .

Activities of a civil nature are a fortiori excluded from the protection mechanism of commercial leases, except for those listed in Article L. 145-2, I of the Commercial Code, such as teaching or artistic activities, to which the status of commercial leases is extended. Similarly, civil servants cannot claim the benefit of the provisions of Articles L. 145-1 and following of the same code insofar as their status is incompatible with that of a trader, since dedicating their entire professional activity to the tasks entrusted to them, they cannot engage in a private lucrative activity of any kind on a professional basis .

Finally, the lessee must have the status of a merchant, industrialist, or craftsman from the formation of the lease contract until its expiration. The absence or loss of this status deprives them of the right to benefit from the status of commercial leases .

Cass. 3e civ., 9 July 2014, LawLex202100001344JBJ.

CA Paris, 21 March 2007, LawLex202100003466JBJ.

Cass. 3e civ., 4 October 1983, LawLex202100001393JBJ, concerning a merchant engaged in the activity of legal advice who, in order to comply with the provisions of the law of 31 December 1971, had himself removed from the trade and companies register to practice the liberal profession of legal advisor.

Cass. 3e civ., 19 March 2003, LawLex202100003165JBJ, according to which the operator of a chalet intended for the sale of “snacks” and drinks benefits from the status of commercial leases as long as, regularly registered in the trade and companies register, they conduct a restaurant business in the rented premises, which they have free use of throughout the year.

CA Paris, 18 January 2006, LawLex202100003397JBJ.

Cass. 3e civ., 10 November 1993, LawLex202100001428JBJ, for apartment leases granted to a company whose corporate purpose is “the activity of a rental entrepreneur with the aim of leasing and subletting all buildings,” these apartments constituting the object of its activity and not the place where it operates its business.

Cass. 3e civ., 10 February 1999, LawLex202100001339JBJ, regarding a lease concerning a building in which the lessee operates a tourist residence.

Cass. 3e civ., 5 October 2017, LawLex202100001345JBJ, which approves a court of appeal for having decided that it was not demonstrated that the lessee had engaged in commercial acts or acts related to a business agency activity, that taking a stake in any legal entities, which is not a commercial activity by nature, cannot suffice to exclude the qualification of professional activity, and that, being an isolated act, it was not carried out under conditions likely to lead to a commercial qualification.

Cass. 3e civ., 7 January 1998, LawLex202100001338JBJ, according to which an agreement does not constitute a commercial lease if it authorizes the lessee to engage in any liberal profession on the premises to the exclusion of any other activity, provides that the rent will be revised on 1 July of each year, includes a specific clause whereby the lessors undertake to renew the lease upon its expiration unless they are compelled to sell the leased premises due to serious economic or family circumstances, and makes no reference to the status of commercial leases, with the lessee having engaged in no commercial activity there.

Cass. 3e civ., 7 November 2001, LawLex202100001340JBJ, who notes that the provisions relating to professional leases may apply to a commercial company.

Cass. 3e civ., 16 February 2011, LawLex202100003167JBJ; 19 June 2002, LawLex202100003165JBJ, according to which, to grant a request for the renewal of a commercial lease, a court of appeal cannot merely find that at the date of this request, the lessee was still registered in the commercial register, that the business had been effectively operated during the last three years, and that the status of commercial leases and the right to renewal were applicable, without addressing the landlords' arguments that he could not claim renewal as he held a civil servant position.

Commercial Leases/Business Goodwill

26. Conducting a commercial, industrial, or artisanal activity.

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

26. Conducting a commercial, industrial, or artisanal activity.

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise