Commercial Leases/Business Goodwill

Each spouse has full legal capacity  to enter into a commercial lease as a lessee for the needs of their own business, regardless of the matrimonial regime to which they are subject. The signing of a commercial lease by one spouse does not make the other spouse a co-holder of the lease. In this respect, it is important to specify that, although Article 1424 of the Civil Code prohibits one spouse from alienating a business without the consent of the other, the operator of the business deemed to belong to the community, who practices their profession independently of their spouse, can validly, and alone, give notice to the lessor, as the termination of a commercial lease cannot be equated with the alienation of a business . The Court of Cassation considers that this is the case even if the spouse in community of property, who is not the leaseholder, has the status of collaborating spouse , as co-ownership of the business does not entail co-holding of the lease.

In the event of joint tenancy of the lease, each spouse must be a co-signatory of the commercial lease at the time of its conclusion, as well as of any amendments made during the lease term. The notification of a notice to one of the spouses, when the tenants have committed “jointly and severally,” is enforceable against the other spouse , which is not the case when they have not committed jointly and severally, as co-tenants do not represent each other mutually. However, neither the notice given to the widow of the tenant who is only the usufructuary of the business following her husband's death , nor the notice given to the tenant after his death, is valid if it has not been properly served to all the owners of the business, co-tenants of the lease . Conversely, and unless there is an express contractual stipulation, the sole will of one spouse to terminate the commercial lease cannot suffice to end the contract with respect to the other spouse who is a co-tenant of the lease , even if the spouses have committed “jointly and severally” in the agreement .

Cass. 3e civ., 18 December 2002, LawLex202200002583JBJ.

Cass. 3e civ., 17 September 2020, LawLex202200002582JBJ.

Cass. 3e civ., 20 July 1989, No 88-12.676; See also Cass. civ. 3e, 21 October 1992, LawLex202100003177JBJ, concerning the recipient of the notice, in the case of two spouses as co-tenants; a court of appeal cannot uphold, to order the eviction of a tenant and her husband, that when two spouses are co-holders of the lease, if the wife has the dual status of tenant and businesswoman, the landlord can validly give notice to her alone, without having to notify this act to the husband who, not being a businessman, is represented by his wife, without investigating whether the spouses have jointly committed to the landlord.

Cass. 3e civ., 5 November 2003, LawLex202100003178JBJ.

Cass. 3e civ., 14 January 2015, LawLex202100003180JBJ, in this case, the co-holders of the commercial lease were the deceased lessee's wife, who became a widow, as well as the heirs of the latter.

Cass. 3e civ., 27 September 2005, LawLex202100003179JBJ.

Cass. 3e civ., 23 June 2016, LawLex202100003181JBJ.

74. Spouse