Use of the termination clause and judicial termination

The order to pay, aimed at the resolutory clause, must specify the date from which the termination must take place. The judicial termination must be justified by a sufficiently serious breach.

A commercial lease is concluded in a building subject to the status of co-ownership.

Two orders to pay charges, relating to the resolutory clause, are issued by the lessor to the lessee company.

The lessor assigns the lessee company to note the termination clause and, in the alternative, by pronouncement of the termination of the commercial lease. The lessor also requests payment of an arrears and an occupancy allowance.

Before the Court of Appeal, a first plea is invoked by the lessor.

He complains that the judgment rejected his request for a finding of termination of the lease by acquisition of the termination clause and to have the occupancy allowance run from the date of the judgment.

According to the Lessor, the resolutory clause, inserted in the commercial lease, providing for automatic termination, takes effect one month after a order to pay remains unsuccessful.

Consequently, according to the landlord, the Court of Appeal violated the provisions of Article L 145-41 of the Commercial Code by refusing to find that TERMINATION CLAUSE on the grounds that the Lessor did not specify the date from which the termination was to take place under the cancellation clause / avoidance clause / resolutory clause provided for in the lease.

The High Court notes that the Court of Appeal found that the lessor was relying on the issuance of two commandments to pay for the resolutory clause in support of its request for a finding of the termination of the lease, without specifying from what date such termination was to occur.

According to the High Court, the Court of Appeal rightly held that this application should be dismissed, since a lease that had already been terminated could not be terminated again.

Before the Court of Appeal, another plea was raised by the lessee.

He complains about the judgment to pronounce judicial termination of the lease and order him to pay a certain amount in respect of the arrears of rents and charges, as well as to fix an occupancy allowance from the stop and until the premises are vacated.

However, according to the Lessee, the Court of Appeal pronounced the termination of the lease by merely noting a non-payment of rents and charges without commenting on the seriousness of this breach, while the charges claimed were questionable and disputed.

Consequently, according to the Lessee, the Court of Appeal violated Article 1184 of the Civil Code, as drafted prior to the order of 10 February 2016.

The High Court upholds this plea.

It recalls that said Article 1184 implies resolution, which must be requested in court.

It observes that the judgment of the Court of Appeal held that the tenant is liable for a certain sum in respect of rents and charges, without examining whether the non-payment of rent and charges was a sufficiently serious breach to justify the judicial termination of the commercial lease.

As a result, the judgment is broken in what it condemns the tenant has paid sums in respect of the arrears of rents and charges.

Court of Cassation, 3rd Civil Chamber, 27 February 2025 No.23-17.898