Legality of the clause obliging the parties to call the lessor to the deed of assignment

Does not constitutent not a clause prohibitive, leading to the prohibition of any transfer, within the meaning of Article L145-16 of the Commercial Code, the stipulations according to which the Lessor will be called upon to assignment of goodwill.

A commercial lease provides for a special clause as follows:

“The lessee may freely grant an assignment of his right to the lease or a sublease to his successor in commerce […].

Any assignment or sublease must take place by notarial deed, to which the lessor will be called ”.

The lessor grants leave to the lessee who disputes it before the court.

During the proceedings, the Lessee sells his goodwill, including the right to lease, to a purchaser, by private deed, and without calling the lessor to the deed.

The purchaser decides to intervene voluntarily in the proceedings, replacing the rights of the original tenant transferor.

The lessor raises the unenforceability of the assignment against him for non-compliance with the contractual stipulations.

The Court of Appeal upheld this plea on the grounds that the transfer was concluded by private deed, without the lessor having been called.

The buyer appeals in cassation on the grounds that the drafting of the assignment clause would be contrary to Article L.145-16 of the Commercial Code.

It would prohibit the lessee of assign his right to the lease, or its goodwill, insofar as it would invest it with the power of opposition and veto.

There was therefore the question of whether the clause, requiring that any assignment be carried out by authentic deed in the presence of the lessor, is lawful.

The Court of Cassation decides that this is a simple limiting or restrictive clause, subjecting the assignment to certain conditions, without prohibiting it.

It is therefore not contrary to the meaning of Article L.145-16 of the Commercial Code and had to be respected.

The Court of Cassation therefore held that the assignment made was unenforceable against the lessor, as the assignment clause had not been respected.

This case law is constant (See for example: Cass. 3e civ., 7 Sept. 2022, No. 21-17.750; Cass. Civ. 3rd, September 26, 2024, No.23-14.786).

Thus, the lessor’s call for the transfer does not offer him the option of opposing it.

The purpose of the clause obliging the lessee to call the lessor is to inform him.

Court of Cassation, 3^rd Civil Chamber, of 13 March 2025 No. 23-23.372