The effects of a termination clause inserted in a commercial lease may be suspended
The lessee who is issued an order for the termination clause may request deadlines to perform his obligation, including when the breach alleged by the lessor does not concern the payment of rents.
The lessee who is issued an order for the termination clause may request deadlines to perform his obligation, including when the breach alleged by the lessor does not concern the payment of rents.
A lessor leased commercial premises for restaurant use.
The lease stipulated a clause according to which the leased premises must always remain open, be operated and used.
On January 10, 2019, the landlord had a court commissioner declare that the restaurant was closed.
By extrajudicial act of January 24, 2019, he served the lessee with an order to resume the operation of the business and aimed at the termination clause of the lease.
This order remained without effect, so that the lessor summoned the lessee in order to have the termination of the lease recorded at the expense of the lessee.
The lessee then requested the suspension of the effects of the termination clause and a time limit to comply.
The Court of Appeal refuses to suspend the effects of the termination clause and to grant the requested deadlines, on the grounds that paragraph 2 of Article L145-41 of the Commercial Code authorizes the judge to suspend the effects of the termination clause only in the event that the termination of the lease is sought due to the non-payment of rents and charges.
It considers that in the present case, the order to resume the activity, issued by the lessor, does not refer to an obligation to pay rent or charges alone likely to justify a request for deadlines for execution and suspension of the termination clause.
The Court of Appeal retained this solution because paragraph 2 of Article L.145-41 refers to the conditions of Article 1343-5 of the Civil Code.
However, Article 1343-5 of the Civil Code authorises the judge to postpone or postpone the payment of claims for sums of money for two years.
As a result, the Court of Appeal limited the possibility for the tenant holding a commercial lease to request deadlines only to the obligations to pay.
According to this reasoning, only tenants who have failed to pay the rent and/or charges can request execution deadlines.
The lessee filed an appeal in cassation, considering that the request to request the suspension of the effects of the termination clause and the deadlines for execution can be made regardless of the breach alleged by the lessor.
In accordance with Article L.145-41 of the Commercial Code, the Court of Cassation recalls that the suspension of the effects of the termination clause may be pronounced by the judge, regardless of the breach of its obligations alleged against the lessee.
Consequently, it considers that the Court of Appeal erred in applying Article L.145-41 of the Commercial Code, insofar as it refused to study the request for suspension of the effects of the termination clause and execution deadlines of the tenant.
Consequently, the judgment is quashed in that it noted the acquisition of the termination clause stipulated in the lease on 24 January 2019, dismissed the tenant’s request for suspension of the effects of the clause and ordered his eviction in the absence of voluntary departure.
The lessee who has ceased to operate the business is entitled to apply to the judge for deadlines allowing him to resume the operation of his activity.
In the present judgment, the Court of Cassation applies the adage “It is forbidden to distinguish where the law does not distinguish”.
Indeed, paragraph 2 of Article L.145-41 of the Commercial Code provides that judges hearing a request for time limits may grant them and suspend the termination and/ or its effects, as long as it has not already been noted or pronounced by a court decision having acquired the force of res judicata.
If the tenant complies with the conditions set by the judge, the termination clause does not apply and the execution of the lease may be continued.
This paragraph has a general scope because it states that any lessor who invokes a clause providing for the termination of the lease may be opposed to a request for time limits.
It does not distinguish, among the obligations of the tenant, which may be sanctioned by the termination of the lease.
Since all the obligations of the tenant can be sanctioned by the termination of the lease, the latter can obtain deadlines for their execution.
In other words, the possibility for the tenant to request the suspension of the effects of the termination clause is not determined by the nature of the obligation that has been breached.
The fact that Article L.145-41 of the Commercial Code refers to Article 1343-5 of the Civil Code does not deprive the lessee of the right to request execution deadlines.
The lessee, who has breached an obligation to do so, stipulated in a commercial lease, may thus request a period of up to two years to perform his obligation.
The judge before whom the request for time limits is made must assess it in the light of the tenant’s situation.
To obtain deadlines and the suspension of the effects of the termination clause, the lessee must, as in the case of payment, demonstrate that he is able to meet the deadlines he requests.
The solution set out by the Court of Cassation must be approved because it confirms the possibility for the lessee to request execution deadlines, regardless of the breach alleged by the lessor.
Cass, Civ. 3rd, February 6, 2025, No.23-18,360
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