The effects of a termination clause inserted in a commercial lease may be suspended

The tenant who is issued a command for the resolutory clause may request deadlines to perform its 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 24 January 2019, he served the lessee with an order to resume the operation of the business and for 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 tenant then requested the suspension of the effects of the termination clause and a deadline to execute.

The Court of Appeal 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 authorises the judge to suspend the effects of the termination clause only in the event that the termination of the lease is sought due to non-payment of rents and charges.

It considers that in this case, the order to resume the activity, issued by the lessor, does not target a 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 tenant filed an appeal in cassation, considering that the request which consists in seeking suspension of the effects of the termination clause and deadlines for execution can be formulated regardless of the breach alleged by the lessor.

Pursuant to 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 application suspension of the effects of the termination clause and execution deadlines of the tenant.

Therefore, the judgment is quashed in that it found the acquisition of the termination clause stipulated in the lease on January 24, 2019, rejected the tenant’s request for suspension of the effects of the clause and ordered his expulsion 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 may obtain deadlines for their execution.

In other words, the possibility for the tenant to request 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 tenant of the right to request turnaround times.

The tenant, who has failed to fulfil an obligation to do so, stipulated in a commercial lease, can thus request a period of up to two years to perform its 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 tenant must, as in terms of payment, demonstrate that it is able to meet the deadlines it requests.

The solution set out by the Court of Cassation must be approved because it confirms the possibility for the tenant to request lead times, regardless of the breach alleged by the lessor.

Cass., Civ. 3rd, February 6, 2025, No.23-18.360