Commercial Leases/Business Goodwill

Under Article L. 145-47 of the Commercial Code, the lessee has the option to add related or complementary activities to the initial activity as provided in the lease (para. 1). This text, which governs what is known as partial or restricted de-specialization, is a mandatory public policy provision . Indeed, since Law No 2014-626 of 18 June 2014 , Article L. 145-15 deems unwritten, regardless of th …

Addition of a related or complementary activity

Under Article L. 145-47 of the Commercial Code, the lessee has the option to add related or complementary activities to the initial activity as provided in the lease (para. 1). This text, which governs what is known as partial or restricted de-specialization, is a mandatory public policy provision . Indeed, since Law No 2014-626 of 18 June 2014 , Article L. 145-15 deems unwritten, regardless of their form, clauses, stipulations, and arrangements that have the effect of thwarting it . This applies to the stipulation of a commercial lease prohibiting the exercise of any activity other than that of a department store for the sale of certain categories of products  or to one requiring the lessee to conduct their activity under a specific brand name . However, the clause that, for a fast-food and prepackaged pastry activity, restrictively prohibits the activity of selling fries and crepes is valid as long as it does not have the effect of prohibiting the tenant from any despecialization . The existence of exclusivity granted to another tenant of the building , or a non-compete clause in the commercial lease , cannot have the effect of preventing the lessee, who seeks partial change of use, from adding related or complementary activities targeted by these restrictive clauses .

Article L. 145-47 of the Commercial Code establishes as the sole condition the related or complementary nature of the new commercial activity, whose addition is contemplated, with regard to the business already operated and provided for by the lease , without requiring it to be predominant in relation to the initial activity . The determination of the accessory or complementary nature of the new activity envisaged is based on factual assessments that fall within the sovereign power of the trial court . While the principle of partial change of use makes a complete change of activity impossible, distinguishing it from total change of use, the complementary nature of a new activity does not preclude it from being inversely predominant in relation to the former activity .

If the ancillary activity that the lessee may add to the activity provided for in the lease is understood as one that presents a similarity, analogy, or dependency link with the products in question or the manufacturing methods , the complementary activity, which is of an accessory nature, consists of an activity that, without being intimately related to the activity authorized in the lease, complements it in a way that may promote its development without altering its nature, that is, the reasonable extension allowing the lessee a better exercise of the main activity to better defend against competition and to follow not only technical evolution but also commercial practices and customer expectations . To assess whether the new activity added by the lessee constitutes an ancillary or complementary activity resulting from economic and social evolution or the emergence of a practice, it is necessary to refer to the identity of the clientele, the products offered, or the working methods . If the ancillary or complementary activity must be linked to the main activity by a sufficient connection , it is not enough that there is a common raw material at the base . Thus, an activity is ancillary or complementary if the product sold is operated under the same conditions as the initial product . Conversely, an on-site tasting activity, which requires an extended stay and by groups of people, as well as the installation of adequate equipment with qualified personnel, is neither ancillary nor complementary to that of sales, as the nature, mode of operation, installation, and type of clientele of these two commercial activities are different . Similarly, the bowling activity, which does not cater to the same clientele as that of a bar-dancing, with the area dedicated to the bowling activity being much larger, constitutes a substitution activity requiring full despecialization .

When the activity constitutes a normal extension of the agreed commerce, neither Article L. 145-47 nor Article L. 145-48 of the Commercial Code applies, as the tenant's initiative falls short of legal expectations, being only a minor adaptation . Thus, activities that are a direct extension of the activity provided for in the lease, constituting only a particular mode of operation, are exempt from the prior notification obligation provided for in Article L. 145-47, para. 2 . However, the Court of Cassation overturned an appellate decision that held that take-out sales constituted a related and complementary activity to a bar, brewery, and cold buffet business, which the tenant could conduct without resorting to the partial despecialization procedure, as these activities were closely related . Finally, the addition of a new activity to an existing business is not subject to the partial despecialization procedure of Articles L. 145-47 and following of the Commercial Code when it is already authorized by the lease .

Cass. 3e civ., 9 January 1969, LawLex202200001770JBJ; 19 June 1970, LawLex202200000675JBJ; Cass. Ass. plén., 26 January 1973, LawLex202200001771JBJ; Cass. civ. 3e, 13 February 1973, LawLex202200001135JBJ; CA Versailles, 23 May 2024, LawLex202400003980JBJ.

Law No 2014-626 of 18 June 2014 relating to craftsmanship, commerce, and very small enterprises, OJ of 19 June 2014, Art. 6.  Under the regime prior to Law No 2014-626, these types of clauses, stipulations, and arrangements were declared null and void. See also Cass. 3e civ., 28 June 2018, LawLex202300009555JBJ. See, however, and by analogy Cass. 3e civ., 19 November 2020, LawLex202200009544JBJ.

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

Cass. 3e civ., 13 February 1969, LawLex202200001122JBJ; 19 June 1970, LawLex202200000675JBJ, previously cited; 16 January 1973, LawLex202200000674JBJ.

Cass. 3e civ., 4 February 1997, LawLex202200001011JBJ. See also CA Versailles, 9 March 2010, LawLex202200001139JBJ.

CA Caen, 13 September 2012, LawLex202200000669JBJ.

CA Paris, 10 February 2010, LawLex202200001127JBJ; CA Versailles, 23 May 2024, LawLex202400003980JBJ, cited above,  which specifies that ancillary and complementary activities, if they are not directly related to the authorized activity, nevertheless constitute its extension by allowing the lessee to promote the exercise and development of the operation authorized by the lease, which is subject to the public policy despecialization procedure provided for in Article L. 145-17, para. 2, of the Commercial Code.

CA Toulouse, 13 April 2006, LawLex202200000887JBJ.

CA Paris, 28 February 2018, LawLex202200000670JBJ.

Cass. 3e civ., 29 October 1970, LawLex202200000678JBJ.

CA Paris, 28 February 2018, LawLex202200000670JBJ, préc.

Cass. 3e civ., 19 June 1970, LawLex202200000675JBJ; CA Bordeaux, 31 March 2010, LawLex202200001270JBJ.

CA Versailles, 5 March 2009, LawLex202200000889JBJ.

CA Montpellier, 26 May 2009, LawLex202300009554JBJ.

CA Douai, 2 November 2011, LawLex202200000884JBJ, which specifies that the PMU activity falls under the obligation of prior notification within the meaning of Article L. 145-47 of the Commercial Code, which, although complementary to the café and tobacco retail activities, does not constitute their direct and necessary extension.

Cass. 3e civ., 7 December 2004, LawLex202200001107JBJ.

Cass. 3e civ., 7 January 1972, LawLex202200000671JBJ.

Cass. com., 11 June 1991, LawLex202200000673JBJ.

Cass. 3e civ., 12 July 2000, LawLex200200004732JBJ. 

Cass. 3e civ., 19 June 1970, LawLex202200000675JBJ; Cass. Ass. plén., 26 January 1973, LawLex202200001771JBJ.

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

Cass. 3e civ., 25 May 1972, LawLex202200000677JBJ.

Cass. 3e civ., 13 February 1969, LawLex202200001122JBJ.

Commercial Leases/Business Goodwill

176. Addition of a related or complementary activity

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Les notions juridiques connexes

176. Addition of a related or complementary activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise