Commercial Leases/Business Goodwill

The exclusivity granted to a tenant of the same building , or the non-compete clause stipulated in the commercial lease , cannot have the effect of prohibiting the lessee, who requests partial despecialization, from adding to the activity provided for in the lease, related or complementary activities covered by these restrictive clauses. Article L. 145-47 of the Commercial Code is not intended to  …

Effects with respect to third parties

The exclusivity granted to a tenant of the same building , or the non-compete clause stipulated in the commercial lease , cannot have the effect of prohibiting the lessee, who requests partial despecialization, from adding to the activity provided for in the lease, related or complementary activities covered by these restrictive clauses. Article L. 145-47 of the Commercial Code is not intended to protect the rights of third parties. Therefore, the trial court cannot refer to the potential right of a third party, on which their decision cannot legally depend, when determining the relatedness or complementarity of an activity .

An exclusivity granted to another tenant in the same building cannot impede the application of Article L. 145-47 of the Commercial Code, which is of public order  and only allows the landlord to contest the extensive or complementary nature of the activity envisaged by the lessee . If a lessee, beneficiary of an exclusivity clause, cannot seek the landlord's liability and claim damages , the amount paid in consideration for this exclusivity must be returned to the tenant, as their obligation to pay this amount is without cause . However, an exclusivity clause continues to produce all its effects as long as the lessee cannot invoke Article L. 145-47, due to not having informed the landlord of their intention to extend their commercial activity . In this case, they must be held to indemnify the landlord for the action brought by the beneficiary of the exclusivity clause to obtain payment of damages for breach of the clause .

The landlord's refusal to oppose the request for despecialization cannot be based on a non-compete clause included in the commercial lease . The Plenary Assembly of the Court of Cassation disapproved of the trial court's position, which, to refuse a tenant operating a supermarket the authorization to engage in the ancillary activity of selling bread prohibited by the lease, relied on the stipulation for others resulting from its commitment not to sell bread, made with the landlord prior to the lease, and the renewal of this commitment by letter to another tenant, whereas, on the one hand, the prohibition stems from a stipulation inseparable from the agreements between landlord and tenant, and, on the other hand, the clear and precise terms of the letter only reiterate this prohibition . However, when the assignee of a business has made a non-compete commitment to the assignor and their successors, independent of the commercial lease, they are obliged to respect it .

Finally, the lessee who, in disregard of the non-compete clause included in the deed of assignment of the leasehold right, engages in an activity not included in the initial lease, directly competing with that of another tenant in the same building, incurs tort liability for this contractual breach that caused damage to a third party .

Cass. 3e civ., 24 October 1984, LawLex202200000676JBJ.

Cass. 3e civ., 9 January 1969, LawLex202200001770JBJ; 15 February 2012, LawLex202100005600JBJ.

Cass. Ass. plén., 26 January 1973, LawLex202200001771JBJ.

Cass. 3e civ., 10 January 1978, LawLex202200001772JBJ.

Cass. 3e civ., 13 July 2010, LawLex201000001178JBJ.

Cass. 3e civ., 13 February 1969, LawLex202200001122JBJ; 19 June 1970, LawLex202200000675JBJ: in this case, the trial court judges did not have to mention the exclusion clause stipulated for the benefit of third-party tenants enjoying exclusivity for the sale of charcuterie and canned food products.

Cass. 3e civ., 1 February 1978, LawLex202200001118JBJ.

Cass. 3e civ., 25 October 1972, LawLex202300009986JBJ.

Cass. com., 5 October 1981, LawLex202200001766JBJ.

Cass. 3e civ., 16 November 1971, LawLex202200001767JBJ.

Cass. 3e civ., 16 July 1974, LawLex202200001768JBJ.

Cass. 3e civ., 15 February 2012, LawLex202100005600JBJ, which recalls that clauses, stipulations, and arrangements that have the effect of defeating the provisions of Article L. 145-47 of the Commercial Code are null and void, regardless of their form; 9 January 1969, LawLex202200001770JBJ, which overturns the appellate decision prohibiting the tenant of a pastry-confectionery business from selling bread, an activity prohibited by the lease, on the grounds that the lease contains a stipulation for the benefit of third parties that other tenants can invoke, whereas the prohibition invoked arises from a clause inserted in the rental contract.

Commercial Leases/Business Goodwill

185. Effects with respect to third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

185. Effects with respect to third parties

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