Commercial Leases/Business Goodwill

In accordance with Article L. 145-51, para. 1, of the Commercial Code, the assignment-despecialization is available to the lessee who proves having requested to benefit from retirement rights or having been granted a disability pension awarded by the disability-death insurance scheme for craft or industrial and commercial professions. The Commercial Code does not require total disability or an ina …

Conditions

In accordance with Article L. 145-51, para. 1, of the Commercial Code, the assignment-despecialization is available to the lessee who proves having requested to benefit from retirement rights or having been granted a disability pension awarded by the disability-death insurance scheme for craft or industrial and commercial professions. The Commercial Code does not require total disability or an inability to engage in any professional activity , so the condition for admission to the benefit of a disability pension is met by the notification of a partial disability pension . Furthermore, the lessee has the option to assign their lease right with despecialization, based on Article L. 145-51, when they are in a situation of combining basic retirement and a professional activity under the conditions permitted by the law of 21 August 2003  and are able to request to benefit from their supplementary retirement . The option offered by Article L. 145-51 of the Commercial Code is reserved solely for the tenant who has requested to benefit from their retirement rights or has been admitted to benefit from them .

In principle, the tenant's intention to assign their lease is sufficient, without needing to sell their business or present a candidate for its acquisition. However, the nature of the intended activities must be compatible with the purpose, characteristics, and situation of the building (Article L. 145-51, para. 2, Commercial Code) . Thus, in the case of creating a laundromat business that requires the installation of multiple washing machines, whose use generates noise exceeding the normal tolerable neighborhood disturbances in a residential building, regardless of the soundproofing measures considered, the resulting change in clientele, both in number and quality, with much longer business hours, allows for the assertion that the intended commercial activity is not compatible with the characteristics of the building . The same applies to a restaurant activity presenting nuisances contradictory to the characteristics of the building, even if noise and odor nuisances can be technically avoided by mechanical ventilation systems, as the tenant, who will have the use of the inner courtyard, will alter the bourgeois purpose of the building by installing tables intended for customers, resulting in noisy activity and intrusive lighting extending into late hours .

If it allows the lessee to assign their lease rights outside the cases specified by the contract, Article L. 145-51 does not exempt them from complying with the other clauses of the lease , particularly regarding the obligation to operate the business and furnish the leased premises with furniture, objects, furnishings, equipment, and merchandise . Thus, a lessee has not fulfilled their obligations when they have acknowledged no longer conducting commercial activity on the premises and not only failed to respond favorably to the demand to resume this activity but also were unable to do so since they were removed from the trade and companies register .

CA Montpellier, 3 September 2013, LawLex202300009360JBJ, which specifies that Article L. 145-51 of the Commercial Code refers to the tenant's admission to the benefit of a disability pension without specifying the necessity of the total nature of the disability.

CA Montpellier, 30 May 2017, LawLex202200003796JBJ.

Cass. civ. 3e, 2 October 1996, LawLex202300009359JBJ.

Law No 2003-775 of 21 August 2003 on pension reform, OJ of 22 August 2003.

Cass. civ. 3e, 23 November 2011, LawLex202200000623JBJ.

CA Montpellier, 28 November 2012, LawLex202300009299JBJ, which refers to Article L. 145-4, para. 4, of the Commercial Code; CA Aix-en-Provence, 29 October 2015, LawLex202300009300JBJ.

Cass. civ. 3e, 30 January 1991, LawLex202300009297JBJ, op. cit., which specifies that the right to transfer can only be limited insofar as the new business would be incompatible with the purpose, characteristics, and location of the building; 23 November 2011, LawLex202200000623JBJ.

CA Montpellier, 12 January 1990, No 89/1657.

CA Paris, 17 November 1995, No 94/014556.

Cass. civ. 3e, 7 November 1990, LawLex202100001294JBJ.  LawLex202300009359JBJ.

Commercial Leases/Business Goodwill

173. Conditions

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173. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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