Commercial Leases/Business Goodwill

Case law has specified for each branch of activity those that fall under a related or complementary activity.

1) Restoration

The Court of Cassation considers that the operation of a restaurant is neither related nor ancillary to the activity of “wine and liquor merchant with authorization to serve a dish of the day” . Similarly, offering garnished dishes to customers, which constitutes a genuine …

Material scope

Case law has specified for each branch of activity those that fall under a related or complementary activity.

The Court of Cassation considers that the operation of a restaurant is neither related nor ancillary to the activity of “wine and liquor merchant with authorization to serve a dish of the day” . Similarly, offering garnished dishes to customers, which constitutes a genuine restaurant activity, does not fall under the category of “café-bar-small brasserie” that the lessor authorized the lessee to add to their initial activity of “wine, liquor, wood, coal, and other fuel merchant” . Neither relatedness nor complementarity is established when the lessee does not merely sell dishes of the day, as provided in the lease, but operates a genuine restaurant on the leased premises , or when the activity consists of the lessee making the leased premises available to clients as a banquet hall, and providing catering services outside restaurant opening hours, this activity being, by its nature, distinct from that of café-restaurant specified in the lease .

The material means implemented to operate the new activity constitute an indicator for establishing whether it is related or complementary. Thus, a restaurant activity, characterized by the preparation of complete meals served hot or cold to many customers, does not have a related or complementary nature to that of a café owner since it requires distinct specialized professional equipment and entirely different arrangements . The Court of Cassation, however, specified that while a “normal restaurant” activity does not in principle have a related or complementary link with the café-bar activity, “fast food” does have such a character insofar as it does not require significant arrangements and targets the same clientele, which it aims to retain by providing this additional service . Conversely, fast food does not equate to that of a café-restaurant, as it is not characterized by standing consumption, nor by consuming on a plate, but by consuming, at very moderate prices, standardized quick meals, without any culinary art implementation, with almost instant provision of paid food, whereas a restaurant, on the contrary, involves prior cooking of more or less elaborate dishes, whose preparation can vary upon the customer's request and may lead to a more or less long time gap between the order and service . Therefore, the activity of a chip shop cannot be considered a complementary activity to fast food insofar as it requires, for its realization, specific installation of premises for ventilation and evacuation of smoke and odors, in compliance with hygiene and safety regulations, as well as distinct equipment for cooking the dishes offered for sale .

Culinary methods, such as cooking techniques, can also be taken into consideration. A restaurant activity in the form of a pizzeria presents a new character compared to the activity of a “salad and sandwich shop” as soon as it involves moving from a type of dining that does not require cooking to one that does, and is likely to produce odors that may inconvenience the neighborhood . Similarly, the activity of traditional dining, which consists of the tenant's long-standing, consistent, and deliberate practice of offering and serving cold or cooked dishes on a terrace—necessarily reheated on-site for the latter and requiring at least preparation by final heating, cooking, or sauce topping—cannot be considered a related or complementary activity to that of a drink vendor. This attracts passersby and not just customers seeking drinks, among other things, by the daily display of dishes as the dish of the day that cannot be equated with fast food, and in any case, fixed dishes that may be expensive .

If the implementation of a musical event in the evening, in the form of a “piano bar” and “karaoke,” is complementary to the activities of a furnished hotel and bar as provided in the lease , the activity of a musical bar does not constitute a complementary or related activity, which requires notification to the lessor by the lessee, but rather a musical event organized occasionally in a bar restaurant, for which it is not established that the clientele is different from the usual clientele of the bar .

On the other hand, the activity of a musical bar is neither related nor complementary to the activity of “food service-bar-brasserie-ice cream parlor” since the clientele, products, and working methods differ . The same applies to the sale of all telephony products, which is not complementary to the activities initially provided for in the lease of premises for use as a “bar, brasserie, wine merchant, caterer, tobacco shop, smoker's articles, lotteries, lottos, transport tickets, and furnished hotel” , or the operation of a PMU office, which does not fall within the scope of the activities of “café, snack-bar, games” .

The activity of selling tax stamps, phone cards, and batteries being imposed by the Administration on tobacco retailers, its connection or complementarity cannot be contested by the lessor . This is also the case for the activities of selling newspapers, limited to a local newspaper, and selling novelty confectionery, which constitute very marginal activities and characterize a customer service provided by the lessee in direct connection with the evolution of commercial practices . The analysis of the trial court judges diverges regarding the nature of the PMU activity. Some consider that although it is complementary, it does not constitute the direct and necessary extension of the tobacco activity, as not all tobacco retail businesses engage in this activity . Others believe, on the contrary, that it constitutes the normal extension of the café-bar and gaming activity, and characterizes a minor adaptation of the initial business, which fits into the development of the business conducted and does not change its purpose .

The sale of hygiene and cleaning products cannot be considered complementary or related to the sale of food products or its normal continuation in accordance with practices . The fact that the activities authorized by the lease and the one the lessee wishes to add are all related to the manufacture or marketing of food products is not sufficient to establish a connection or complementarity between them, as the sale of grocery products and regional products is not similar, analogous, or dependent on the activities of “bakery, pastry, confectionery, chocolate, tea room, catering, sandwich, ice cream, drinks, alcohol, and pastries, all manufacturing and baking related to the activity” .

According to the Court of Cassation, the sale of roasted poultry alongside non-roasted poultry, fresh pork meat, and canned butcher or tripe meat, “are undeniably related or complementary to those that usually take place in butcher shops or tripe shops, according to the practices of the profession” . In contrast, the activities of reselling charcuterie and regional dishes and selling chickens are neither related nor complementary to horse butchery .

The Court of Cassation held that the sale of confectionery, chocolate, and ice cream is not related to or complementary to the activity of a baker, even if the sale of these products is often practiced by bakers and the lease contains no restrictions on this point . Similarly, the marketing of grocery and regional products does not have close dependency links with those of bakery-pastry, tea room, sandwich shop, or catering and is neither related nor complementary to these activities, as the clientele is not comparable and the ranges of products concerned and the working methods present no similarity, while furthermore, the addition of an activity of selling regional products would lead, due to the very general nature of the new activity envisaged, to a loss of the specificity of the business which lies in the marketing of artisanal bakery and pastry products as well as catering dishes and sandwiches prepared on site .

The activity of car repair, bodywork, and painting does not present, with respect to the garage business without repairs with a gas station provided for in the lease, any connection or complementarity . Similarly, neither connected nor complementary are the extension of a business of “sewing machines, mechanics, and velocipedes” to the sale of household appliances and televisions , the activity of selling frames with regard to an initial business of tableware, sale of decorative objects, gifts, and cards , or even the highly specialized activities of a sex shop vis-à-vis a bookstore, publishing, and distribution business, even extended to import-export .

Conversely, the activities of “tailoring, ready-to-wear for women,” which target the same female clientele in the same range of luxury textile items as those provided for in the commercial lease of “girdles, bras, shirts, hosiery, and underwear” , and dry cleaning in relation to washing, meet the criteria of connectivity and complementarity. They present a link resulting from the nature of the service of weight-based washing, with the new activity providing customers with undeniable convenience and a significant time-saving, in line with the evolution of commercial practices . The gardening activity can be added to that of DIY as it aligns with the evolution of practices concerning DIY activities, with all DIY stores today having gardening sections with accessories, this activity being listed in the DIY nomenclature issued by the Professional Federation of DIY stores. The same applies to the pet shop activity insofar as it remains confined to the sale of products for the maintenance or feeding of animals and does not extend to the sale of the animals themselves, as the buyer's approach is not of the same nature . The men's hairdressing activity constitutes a related activity as it does not correspond to a new conception of the women's hairdressing activity provided for in the lease, but to an extension of this activity . The new parcel relay activity, consisting of the registration of registered letters or packages deposited by users, is considered a related or complementary activity to that of newspaper deposit, bookstore, stationery, haberdashery, confectionery, and directly related activities . Finally, while the sale of computer consumables and media intended to receive computer data constitute related and complementary activities to those of reprography, printing, and stationery, this is not the case for the activity of selling computer consumables and/or data backup, which has no other purpose than to serve in the assembly of computers .

Cass. 3e civ., 23 November 1993, LawLex202200001123JBJ.

Cass. 3e civ., 17 November 1998, LawLex202200000963JBJ.

Cass. 3e civ., 17 July 1996, LawLex202200001091JBJ, RJDA 1996, No 1304.

CA Toulouse, 13 April 2011, LawLex202200000888JBJ.

CA Toulouse, 13 April 2006, LawLex202200000887JBJ.

CA Versailles, 23 June 2011, LawLex202200001303JBJ.

Cass. 3e civ. 27 November 1970, LawLex202200001753JBJ.

CA Bordeaux, 31 March 2010, LawLex202200001270JBJ.

CA Bordeaux, 31 March 2010, LawLex202200001270JBJ, previously cited.

CA Douai, 2 November 2011, LawLex202200000884JBJ.

CA Douai, 26 May 2011, LawLex202200000885JBJ.

CA Rennes, 23 November 2011, LawLex202200001140JBJ: in this case, although the tenant was aware of the landlord's opposition to the sale of non-food products since the formal notice, the tenant did not comply with the restricted despecialization procedure in the event of the landlord's disagreement by continuing to sell products other than food in violation of the lease.

Cass. 3e civ., 6 November 1991, LawLex202200001121JBJ.

CA Caen, 13 September 2012, LawLex202200000669JBJ.

Cass. 3e civ., 19 June 1970, LawLex202200000675JBJ.

Cass. 3e civ., 26 November 1991, LawLex202200001106JBJ.

Cass. 3e civ., 16 January 1973, LawLex202200000674JBJ.

Cass. 3e civ., 17 March 1971, LawLex202200001134JBJ.

Cass. 3e civ., 18 June 1970, LawLex202200001137JBJ.

CA Versailles, 9 March 2010, LawLex202200001139JBJ.

Cass. 3e civ., 16 February 1983, LawLex202200000679JBJ.

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

CA Nancy, 19 June 2024, LawLex202400004684JBJ.

Cass. 3e civ., 13 February 1973, LawLex202200001135JBJ.

CA Paris, 10 February 2010, LawLex202200001127JBJ.

Paris, 27 February 2013, LawLex202200001126JBJ. 

CA Versailles, 23 May 2024, LawLex202400003980JBJ.

CA Paris, 26 January 2011, LawLex202200001166JBJ.

Cass. 3e civ., 28 May 1997, LawLex202200000966JBJ.

Cass. 3e civ., 19 July 2000, LawLex202200000965JBJ.

CA Paris, 13 February 2008, LawLex202200001269JBJ.

CA Paris, 28 February 2018, LawLex202200000670JBJ.

Cass. 3e civ., 18 June 2002, LawLex202200000964JBJ.

CA Montpellier, 13 May 2009, LawLex202200000886JBJ.

Commercial Leases/Business Goodwill

177. Material scope

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

177. Material scope

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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