The action seeking to have this clause deemed unwritten under Article L. 145-15 of the Commercial Code recognized is imprescriptible.
Third Civil Chamber. November 19, 2020, No. 19-20.405. – Published in the Bulletin – Unpublished
In an unprecedented ruling by the third civil chamber dated November 19, 2020, the Court of Cassation clarified the temporal application of the provisions of ArticleL. 145-15 of the Commercial Code relating to clauses deemed unwritten.
This article, amended by the Pinel Law of June 18, 2014, stipulates that clauses contrary to the mandatory provisions of the commercial lease statute are deemed unwritten. Previously, the applicable sanction in such a situation was nullity.
The Court of Cassation, in accordance with its consistent case law, reiterates the full significance of the change in sanctions brought about by the Pinel law.
Indeed, while the action relating to the nullity of a clause of the current commercial lease is subject to a limitation period of two years following the signing of said lease (application of the two-year limitation period of ArticleL. 145-60 of the Commercial Code), the action now seeking to have this clause deemed unwritten recognized under Article L. 145-15 of the Commercial Code is imprescriptible.
In particular, the case concerned a commercial lease concluded before the Pinel Law came into effect, but whose execution continued under the new law. The Court of Cassation thus accepted that the provisions of the Pinel Law relating to clauses deemed unwritten could be applied to a contract that predated the law and was still in effect when it came into force.
It appears that tenants could claim the right to initiate proceedings to have a clause in a commercial lease, without any limitation period being able to prevent it and even if the contract was concluded prior to the entry into force of the Pinel law.
This solution would have the consequence that tenants would be entitled to challenge the application of clauses in a commercial lease that are contrary to public policy, at any time during the application of the lease.