Commercial Leases/Business Goodwill

In principle, the tenant may only conduct the activities listed in the commercial lease on the leased premises. However, the tenant may engage in certain activities that, while not expressly mentioned in the lease, are included in the contractual purpose as long as they naturally relate to the initial activity and its evolution according to commercial customs or practices. Indeed, these activities …

Concept of Included Activity

In principle, the tenant may only conduct the activities listed in the commercial lease on the leased premises. However, the tenant may engage in certain activities that, while not expressly mentioned in the lease, are included in the contractual purpose as long as they naturally relate to the initial activity and its evolution according to commercial customs or practices. Indeed, these activities, which are a direct extension of those provided for in the lease and constitute only a particular mode of operation, may be freely carried out by the tenant . The addition of an activity considered included, which is exempt from the partial despecialization procedure of Article L. 145-47 of the Commercial Code, cannot lead to the uncapping of the rent upon lease renewal . The trial court judges have sovereign discretion to assess the inclusive nature of an activity with regard to the purpose of the leased premises.

Activities considered included are those of a Turkish-style sandwich shop with a vertical spit, using standardized preparation, allowing customers to sit and consume on a plate, which does not constitute an activity contrary to “fast food, take-out” , or activities “of take-out sales of dishes prepared and cooked on site and sales of these dishes online with delivery,” which characterize a particular mode of operation of the activity of “General food and restaurant, typically exotic, that is to say typically Asian,” in line with the evolution of commercial practices . The Court of Cassation even considered that the sale of tickets for access to the Palace of Versailles should be regarded as an activity included in that of “café, bar, tea room, restaurant, sale of instant games of the Française des jeux,” as it is a service offered to their clientele by all the bars and restaurants located nearby and this activity offers a local service corresponding to the evolution of local commercial practices around the palace . On the other hand, the activity of privatizing the leased premises to frequently and regularly organize meals or festive events, particularly for weddings and anniversaries, during the week or weekend, and even on Sunday, the establishment's closing day, is not included in the commercial activity of café-restaurant .

The sale of phone cards constitutes an activity included in that of tobacco retail . Indeed, according to commercial practices, it is the same business that targets the same clientele with the same goal, which is to provide a local service to the public . Conversely, while the PMU activity constitutes the normal extension of that of a café-bar and games and characterizes a minor adaptation of the initial business, which fits into the development of the business conducted and does not change its purpose , it does not constitute, despite its complementarity with a café and tobacco retail business, the direct and necessary extension of this activity, as not all tobacco retail businesses engage in PMU activity .

If the activity of leather goods and travel articles is included in that of “articles de Paris – trinkets and toys, excluding any other trade” , the activity of “creation, importation, and exportation of costume jewelry including both wholesale and retail sale of these jewels” does not fall within that of “articles de Paris,” to which it can be related and which is defined as the sale of a set of fashion accessories, but rather falls under the category of jewelry, which is, moreover, for the most part, conducted as wholesale trade . Similarly, the activity of “repair of leather goods” constitutes a new activity compared to that of manufacturing leather goods or selling clothing or gifts .

The activity of “heating” is considered implicitly included, according to professional practices, in the plumbing activity . The same applies to the sale of parapharmaceutical products for a pharmacy  or the distribution of insurance products by banks .

On the other hand, activities not included in the purpose of the leased premises are framing for a lease related to tableware activities, sale of decorative objects, gifts, and cards, even if there is no workbench within the premises intended for frame manufacturing , or men's hairdressing for a ladies' hair salon, insofar as the techniques involved, the products used, and the working methods are different, addressing a clientele that is by nature different, with different needs . Finally, the care of individuals identified as dependent cannot be linked to the activity of “boarding house or retirement home for the elderly,” since the notion of the elderly, at the time of the lease conclusion, was not equivalent to the concept of dependency developed by Law No 97-60 of 24 January 1997 targeting individuals who have lost their autonomy .

CA Versailles, 23 May 2024, LawLex202400003980JBJ.

CA Paris, 17 February 2021, LawLex202200001259JBJ. 

Paris, 7 November 2007, LawLex202200001285JBJ.

CA Paris, 7 September 2011, LawLex202200001287JBJ.

CA Paris, 14 February 2007, LawLex202200007447JBJ.

Cass. 3e civ., 13 January 1999, LawLex202200001104JBJ.

Cass. 3e civ., 21 March 2007, LawLex202200001101JBJ.

Paris, 30 June 2010, LawLex202200001283JBJ.

CA Versailles, 9 March 2010, LawLex202200001139JBJ.

CA Paris, 27 February 2013, LawLex202200001126JBJ.

Cass. 3e civ., 28 June 2011, LawLex202200001102JBJ.

CA Paris, 13 February 2008, LawLex202200001269JBJ.

Paris, 17 February 2021, LawLex202200001259JBJ, prec., which further specifies that the resale of already processed products, and thus of prepared meals in an individual or family format, is common and consistent with the evolution of practices in general food retail, this activity being able to be conducted online, whether through a dedicated delivery service or via a platform.

Cass. 3e civ., 16 September 2015, LawLex202200001099JBJ.

CA Nancy, 19 June 2024, LawLex202400004684JBJ.

CA Versailles, 23 June 2011, LawLex202200001303JBJ.

Cass. 3e civ., 6 January 2009, LawLex202200001100JBJ.

CA Douai, 26 May 2011, LawLex202200000885JBJ.

CA Douai, 2 November 2011, LawLex202200000884JBJ.

Commercial Leases/Business Goodwill

178. Concept of Included Activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

178. Concept of Included Activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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