Indexation clause deemed unwritten: what is the tenant's claim?

  and that “it is common ground that the request for a disputed clause to be deemed unwritten is not subject to the five-year limitation period.  

The Court then approved the trial judge who had considered that the sums unduly paid, by virtue of a clause supposed to have never existed, must be returned. 

On the other hand, the Court of Appeal considers the calculation of the amount of rent to be returned to the tenant to be made with regard to the rent paid on the date of the starting point of the five-year limitation period. For the Court, this limitation period prohibits taking into consideration the original rent:

 “On the other hand, contrary to what the first judge held, if it is indisputable that the sums unduly paid under a clause that supposedly never existed must be returned, the claim in this respect is an action for recovery of the undue amount, subject to the five-year limitation period under ordinary law of Article 2224 of the Civil Code, so that the restitution claim cannot be calculated on the basis of the initial rent but must be calculated on the basis of the rent paid on the date of the starting date of the limitation period. 

(…)

 As a result, XX’s restitution claim will be calculated on the basis of the rent paid on the date of the starting date of the limitation period and the overpayment consists of the difference between the sums paid for five years and the sum it should have paid corresponding to the contractual rent. ” 

The tenant, who considers that the restitution of illegal indexations not prescribed must necessarily be carried out with regard to the initial rent and not the amount of the last illegally indexed rent, appeals in cassation. 

By a judgment delivered on 23 January 2025, the Court of Cassation annulled and partially annulled the appeal judgment. 

The Court of Cassation recalls:
  

• On the one hand, that the action for recovery of the undue amount falls within the five-year limitation period under ordinary law. This action does not fall within the abridged two-year limitation period, applicable to actions exercised on the basis of the status of commercial leases.
    

• On the other hand, the action to have a clause of the commercial lease deemed unwritten is not subject to limitation (3rd Civil Division, November 19, 2020, appeal No.19-20.405, published; 3rd Civil Division, November 16, 2023, appeal No. 22-14.091, published)
   

The Court concludes that the tenant, who has paid indexed rent under an indexation clause subsequently deemed unwritten, may act in payment of the sums unduly paid in the five years preceding his claim in court. 

The censure of the Court of Appeal intervenes at the stage of the application of these principles. 

For the Court of Cassation, “as soon as a deemed unwritten stipulation is deemed to have never existed, the claim for restitution of the undue amount must be calculated on the basis of the amount of rent that would have been due in the absence of application of such a stipulation“. 

The Court of Appeal could not therefore take into account the rent paid on the date of the starting date of the limitation period to determine the tenant’s claim. 

From a legal point of view, this solution must be approved in that it draws the consequences of the non-existence of the indexation clause deemed unwritten. 

From a practical point of view, the consequences of this decision are important and protective of tenants.  

In the event of a dispute with his lessor, a lessee clearly has an interest, in the presence of an illicit indexation clause, to oppose a claim against the lessor and, if necessary, to take legal action to have the unwritten nature of the clause noted and to request a refund of the overpaid rents. 

 Court of Cassation 3rd Civil Chamber, 23 January 2025 – No. 23-18.643