Commercial Leases/Business Goodwill

Under the terms of Article L. 145-47, para. 3, of the Commercial Code, by way of derogation from the provisions of Article L. 145-38, which sets the rules for capping, it may, during the first triennial revision following notification to the lessor, be taken into account, for the determination of the rent, the ancillary commercial activities, if these have themselves caused a change in the rental value of the leased premises, the proof of which must be provided by the lessor . The provisions of Article L. 145-47, which are of public order, can only be waived by a waiver occurring once the right to despecialization has been acquired. Thus, an amendment to the lease cannot both modify the contractual purpose of the leased premises and stipulate an increase in rent, contrary to the letter of Article L. 145-47 .

Furthermore, the removal of the rent cap for the renewed lease is justified when the modification of the purpose of the premises occurred during the lease to be renewed and the new activities of the lessee, which are not included in the original lease, constitute a significant change in the purpose of the premises , without the need to determine whether these have had a favorable impact on the lessee's activity . Thus, the rent of a renewed lease can be set without a cap when an amendment has authorized an activity not initially included in the lease and stipulated an increase in rent in exchange for this extension of activity, these changes occurring during the expired lease being considered significant modifications of the purpose of the premises and the respective obligations of the parties .

Finally, when the commercial lease stipulates a clause for automatic termination due to cessation of activity, Article L. 145-42, para. 1, of the Commercial Code provides that this clause ceases to have effect during the time necessary for the transformations made pursuant to the provisions relating to despecialization. However, para. 2 indicates that “this period shall not exceed six months from the date of the agreement on despecialization or the judicial decision authorizing it.”

Cass. 3e civ., 19 May 2004, LawLex202200001764JBJ.

Cass. 3e civ., 4 January 2012, LawLex202200001765JBJ.

Cass. 3e civ., 18 January 2012, LawLex202200000460JBJ.

Cass. 3e civ., 14 November 2012, LawLex202200000476JBJ.

184. Effects with respect to the parties