The essential clauses of the commercial lease

The commercial lease is a synallagmatic contract whose content, although falling within the scope of contractual freedom, is strictly governed by the public policy provisions of the status of commercial leases, codified in Articles L. 145-1 et seq. of the Commercial Code.The drafting of these contracts requires extreme precision, as any ambiguity or omission can generate costly litigation or loss of rights.

Therefore, the intervention of a specialized lawyer is crucial to secure the contractual relationship and anticipate the difficulties related to the execution, modification or termination of the lease.

Clauses relating to the purpose, destination and duration of the commercial lease

These clauses constitute the fundamental framework of the rental relationship and determine the freedom and obligations of both the lessee and the lessor.

The designation of the leased premises

The contract must accurately identify the main premises made available to the lessee.

The case law insists on the need to mention ancillary premises, such as garages or warehouses, when their use is essential for the operation of the business (Cass. 3rd civ., June 20, 2018, No. 17-21.456).

In the event of a dispute, the lack of precision may call into question the application of the status of commercial leases and limit the protection of the lessee.

The lawyer plays a decisive role here in ensuring the exact description of the surfaces, outbuildings and associated uses.

The destination of the place

The destination clause sets out the activities that the lessee is authorised to carry out. In accordance with Article L. 145-1 of the Commercial Code, the lessee must use the premises “according to the purpose given to him by the lease”.

Any modification of this destination, called despecialization, is strictly regulated by law and case law.

The Court of Cassation recalled that any use not in accordance with the agreed purpose may justify sanctions, including the termination of the lease for breach (Cass. 3rd civ., June 14, 2018, No. 17-18.873).

The lawyer intervenes to draft flexible but protective clauses, authorizing certain adaptations of activity without compromising the rights of the lessee.

The duration of the contract

The minimum legal term of a commercial lease is nine years (C. com., art. L. 145-4), although specific terms may apply to certain types of premises, such as tourist residences.

The determination of the duration is essential, because it conditions the rights to renewal and the possibility of triennial termination by the lessee (C. com., art. L.145-5).

The lawyer can advise on the strategic implications of the term, in particular in terms of eviction compensation and rent review.
Financial

clauses of the commercial lease: rent, charges and works

Financial aspects are at the heart of rental relationships and are a major source of

litigation.

The initial rent is freely fixed by the parties (C. com., art. L.145-33), but its revision is framed by two main mechanisms: the triennial revision and the revision via sliding scale clause.

• Triennial review: in accordance with Article L. 145-37, the rent may be reviewed every three years, at the request of one of the parties, provided that the rent has been paid for three years. The Court of Cassation has specified that the new rent may not exceed the variation in the commercial rent index, unless there is a material change in the local commerciality factors resulting in a variation of more than 10% in the rental value (Cass. com., 16 Feb. 2008, No. 06-15555).
• Revision via sliding scale clause: Article L. 145-39 allows the rent to be revised whenever it varies by more than a quarter from the previously fixed price. Case law has held that an indexation clause that varies only upwards is deemed unwritten (Cass. 3rd civ., June 30, 2021, No. 19-23.038).

The lawyer plays an essential role in ensuring the drafting of revision clauses and the accuracy of indices, thus avoiding disputes over the amount of rent during the lease.

Expenses, taxes and works

Since the Pinel law of 18 June 2014, the lease must contain a precise inventory of charges, taxes and fees, with their distribution between the lessor and the lessee (C. com., art. L.145-40).

Clauses requiring the lessee to make major repairs (art. 606 of the Civil Code) must be interpreted strictly.

Work related to obsolescence or a structural defect remains, in principle, the responsibility of the lessor (Cass. 3rd civ., 7 Nov. 2016, No. 15‑22.314).

The vigilance of a lawyer makes it possible to limit the risks of dispute and to guarantee the conformity of the contract with the legislation and the jurisprudence.

Obligations and rights of the parties

Beyond the financial aspects, the lease organizes the life of the contract and the prerogatives of each.
Lessor’s

obligations

The lessor must deliver the property in good condition and guarantee peaceful enjoyment (C. com., art. L. 145-1 and L.145-8). It is not required to ensure commercial exclusivity, unless expressly stipulated.

The precise wording of these obligations protects the lessor against any unjustified claim and secures the lessee.

Obligations of the lessee

The lessee must use the premises “reasonably” and respect the contractual destination (C. com., art. L. 145-1). Some clauses impose specific operating obligations, such as maintaining commercial openness.

These clauses, qualified as essential by case law, cannot be unilaterally modified upon renewal (Cass. 3rd Civ., 6 Feb. 2020, No.19-86.945).
Assignment and sublease

clause

The lessor may not prohibit the assignment of the lease with the business (C. com., art. L.145-16).

The restrictive covenants are strictly framed, and any guarantee of the transferor cannot be invoked beyond three years (C. com., art. L. 146-16-2).

The lawyer is essential to secure these clauses and avoid the cancellation or limitation of guarantees.

Clauses relating to the end of the commercial lease

The end of the lease is a sensitive moment, dominated by the rights of the lessee and the obligations of the lessor.

Right to renewal

The right to renewal is central to the status of commercial leases. According to C. com., art. L.145-10 and L. 145-34, the lessee may obtain the renewal of the lease, with fixing of the rent at the rental value, unless otherwise agreed.

The case law recalls that the renewed lease is a new contract, but the general conditions of the previous lease apply, except for the rent (Cass. 3rd Civ., 6 Feb. 2020, No. 19-86.945).
Termination

clause

The resolutory clause allows the automatic termination of the lease in the event of default by the lessee, most often for non-payment of rent (C. com., art. L. 145-41).

The Court of Cassation imposes a prior order and a period of one month to regularize the situation. Any clause reducing this period is null and void (Cass. 3rd civ., March 11, 2021, No. 20-13.639).
Removal

indemnity and right to remain in the premises

When the lessor refuses the renewal, it must pay an eviction indemnity to the lessee (C. com., art. L. 145-14 and L.145-28), calculated on the actual damage suffered, including the value of the business, relocation costs and transfer duties.

The case law specifies that this compensation cannot be capped at the market value of the building (Cons. const., March 5, 2021, No. 2020-887 QPC). The former tenant retains the right to remain in the premises as long as the compensation is not paid, an essential condition for the protection of his business (Cass. 3rd civ., 31 May 2007, No. 06‑12.907).

Right to repent

Article L. 145-58 provides that the lessor may revoke a non-renewal decision and propose the renewal of the lease, a measure that is exercised automatically and irrevocably.

This faculty, governed by case law (Cass. 3rd civ., 24 Jan. 2019, No.17-11.010), illustrates the complexity of the interactions between the rights of the lessee and the prerogatives of the lessor, and the need for specialized advice to anticipate the legal effects.

Conclusion

Drafting a commercial lease is a demanding technical exercise. Each clause, whether it concerns the designation of the premises, the rent, the revision, the assignment, or the termination, has important legal implications.

Case law demonstrates that the slightest oversight or inaccuracy can lead to the loss of essential rights, such as the renewal of the lease or the payment of the eviction indemnity.

Thus, although the status of commercial leases provides a protective legal framework, the intervention of a specialized lawyer remains essential to secure the contract, anticipate risks and ensure that each clause is drafted with the necessary precision to protect the interests of both the lessee and the lessor.

This technical, rigorous and educational approach ensures that the rental relationship is part of a clear and secure legal framework, limiting disputes and strengthening the legal certainty of the operation.