Court of Cassation, Civil Division, Third Civil Chamber, December 3, 2020, 19-20.613, Unpublished
In a ruling issued on December 3, 2020, the 3rd Civil Chamber of the Court of Cassation held that the judicial termination of a commercial lease for failure to operate the premises cannot be ordered if no express provision in the lease obliges the lessee to operate his business in the leased premises.
Indeed, the Court of Cassation overturned the Court of Appeal's ruling that had ordered the termination of the commercial lease due to shared fault between the tenant and the landlord, on the grounds that the tenant had committed a serious fault by ceasing all operations and leaving the leased premises, even though the exercise of a commercial activity was not hindered.
The Court of Cassation thus held that:
" Having regard to Articles 1184, in its wording prior to that resulting from the order of 10 February 2016 , and 1728 of the Civil Code: it follows from these texts that the judicial termination of a commercial lease for failure to operate the premises cannot be pronounced if no express stipulation of the lease obliges the lessee to operate his business in the leased premises."
Landlords are therefore advised to include in the lease agreement a clause under which the tenant will be obliged to operate their premises except during periods of closure such as annual leave or during the execution of works.
