Judges have the power to suspend the implementation of a termination clause in a commercial lease regardless of the breach attributable to the lessee.
This is essentially what the Court of Cassation has just clarified in a ruling dated February 6, 2025, 23-18.360.
On August 2, 2004, the parties entered into a commercial lease for premises to be used as a restaurant. This lease provided in particular that, except as provided by applicable law, the premises must remain open to the public at all times, operated, and adequately stocked. The lessee was therefore bound by an obligation of continuous operation.
However, the lessee stopped the operation on January 10, 2019 ; in this context, the lessor served the lessee with a formal notice invoking the termination clause stipulated in the lease, ordering him to resume operation of the premises, pursuant to Article L. 145-41, paragraph 1, of the Commercial Code
In the absence of a resumption of activity, the lessor then brought legal proceedings to have the lease terminated.
In the proceedings, the tenant requested a postponement with suspension of the effects of the termination clause on the basis of Article L. 145-41, paragraph 2 of the Commercial Code.
However, the supreme Court ruled that judges have the power to suspend the effects of the termination clause even in the event of a breach other than that relating to the payment of sums owed by the lessee to the lessor.
These clarifications will therefore be welcomed by lessees. However, they do not have the effect of granting them excessive protection, insofar as the judge retains the power to reject this request after an examination of the merits.
The decision nevertheless inevitably draws criticism from lessors, who denounce the preponderant role given to the sovereign power of the judge, to the detriment of the effectiveness of the termination clause and the contractual freedom of the parties to the lease.
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