Commercial Leases/Business Goodwill

According to Article 413-6, para. 1, of the Civil Code, “the emancipated minor is capable, like an adult, of all acts of civil life.” Thus, they may freely enter into a commercial lease on a building they own.
When the minor is represented by a legal administrator in all acts of civil life , legal representation is entrusted to the parents if they retain parental authority over the minor, or to a  …

Emancipated minor or under guardianship

According to Article 413-6, para. 1, of the Civil Code, “the emancipated minor is capable, like an adult, of all acts of civil life.” Thus, they may freely enter into a commercial lease on a building they own.

When the minor is represented by a legal administrator in all acts of civil life , legal representation is entrusted to the parents if they retain parental authority over the minor, or to a guardian.

Pursuant to Article 382-1 of the Civil Code, “when legal administration is exercised jointly by both parents, each of them is deemed, with respect to third parties, to have received from the other the power to perform alone acts of administration concerning the minor's property.” The conclusion of a commercial lease, which is an act of disposition , therefore requires the consent of both parents, with the guardianship judge being able to be seized in case of disagreement between them . When only one parent exercises parental authority, legal administration belongs to them , allowing them to conclude, alone, a lease concerning the minor's property. The commercial lease granted in the name of a minor does not confer upon the lessee, with respect to the minor who has become an adult, any right to renew the lease or any right to remain in the premises upon its expiration .

Guardianship is established and a guardian is appointed , for its duration, when both the father and mother of the minor are deceased or deprived of parental authority . If the guardian represents the minor in all civil acts , they cannot, however, “without being authorized by the family council or, failing that, the judge, perform acts of disposition on behalf of the protected person” . Therefore, the guardian must seek authorization from the family council or the judge to conclude a commercial lease on behalf of the minor, for the lease to produce all its effects. The authorization must expressly refer to the application of the status of commercial leases , and not just a lease for a duration exceeding nine years . When a lease exceeding nine years has been concluded by the guardian alone, it is unenforceable against the minor who has become an adult, the lease being enforceable only for a duration not exceeding nine years from its conclusion . Furthermore, regardless of its duration, the commercial lease granted by a guardian alone does not confer on the lessee, with respect to the minor who has become an adult, any right to renew the lease , nor any right to remain in the leased premises upon expiration of the lease, even if there are contrary legal provisions , even if the lessee contracted under the mistaken belief that the guardian was the owner of the leased premises . It should be noted that when the lease was concluded for a fixed term, it is not necessary, once the minor has become an adult, for a notice to be given to evict the tenant at the expiration date of the lease .

Decree No 2008-1484 of 22 December 2008, Art. 1 and Annex 1, col. 2-I.

Cass. 1re civ., 10 May 1988, LawLex202100002686JBJ, previously cited, in this case, the judge's authorization was sought and obtained only to conclude a lease for a term exceeding nine years, which did not authorize the minor's mother to enter into a lease granting the status of commercial leases.

Art. 1718 Civil Code and, by reference, Art. 595 Civil Code.

Cass. 1re civ., 10 May 1988, LawLex202100002686JBJ, prec.; Also see Cass. 1re civ., 21 June 1989, LawLex202100002760JBJ, prec.

Cass. 1re civ., 14 May 1996, LawLex202100002687JBJ.

Cass. 3e civ., 26 April 1978, No 76-15.361, Bull. civ. III, No 159.

Cass. 3e civ., 15 March 2000, LawLex202100002689JBJ, concerning a mother, acting as the legal administrator of her minor son, who granted a tenant a ten-year lease on plots of land with permission to install removable constructions and operate a business for the storage and maintenance of materials.

Cass. 1re civ., 10 May 1988, LawLex202100002686JBJ; Also see Cass. 1er civ., 21 June 1989, LawLex202100002760JBJ.

Commercial Leases/Business Goodwill

70. Emancipated minor or under guardianship

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70. Emancipated minor or under guardianship

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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