On 6 February 2025, the Court of Cassation handed down an important ruling (Cass., 3rd civ., 6 February 2025, no. 23-18.360), reiterating the scope of the suspension of the effects of the resolutory clause in commercial leases. This ruling is in line with the desire to provide greater protection for commercial tenants by confirming that the judge may grant periods of grace, regardless of the breach of which the tenant is accused.
A ruling in line with developments in commercial lease law
Historically, the decree of 26 November 1953 provided that periods suspending the effects of a resolutory clause could only be granted in the event of non-payment of rent. This restrictive approach was abandoned with the Law of 31 December 1989, which removed the express reference to payment of rent, thereby opening up the possibility of obtaining periods of grace for any breach of the lease.
The judgment of 6 February 2025 is in line with this legislative continuity. In this case, a lessor criticised its lessee for closing its restaurant, in breach of a clause requiring continuous operation. The lessor therefore invoked the resolutory clause and summoned the lessee to terminate the lease. The tenant asked for time to resume his business, invoking article L. 145-41 of the French Commercial Code.
An erroneous interpretation by the Court of Appeal
The Paris Court of Appeal rejected this request, ruling that the possibility of granting time limits was limited to cases of non-payment of rent and service charges. This interpretation was based on article 1343-5 of the Civil Code, which deals with money obligations.
However, the Court of Cassation overturned this decision, pointing out that article L. 145-41 of the Commercial Code gives the judge a general power to suspend the effects of the resolutory clause, regardless of the tenant's breach. It thus confirms an extensive interpretation based on the 1989 reform.
Consistency with the logic of commercial lease law
The Court of Cassation's position is justified by several considerations:
- Balanced protection for the tenant: The resolutory clause is an extremely severe sanction for the tenant, which can lead to the loss of his business. The granting of time limits enables the tenant to comply with his obligations.
- A logical reading of the Commercial Code: Since the reference to payment of rent in article L. 145-41 has been removed, there is no reason to restrict its application to pecuniary obligations only.
- Continuity with previous case law: As early as 1992, the Court of Cassation had adopted an extensive interpretation of this text (Cass., 3rd civ., 15 January 1992, no. 90-16.625), and this 2025 ruling merely confirms this approach.
What are the consequences for landlords and tenants?
For landlords, this ruling means that a resolutory clause cannot be applied automatically, even in the event of a breach unrelated to the payment of rent. They will have to anticipate the possibility that the judge may grant a delay, which could delay a possible repossession of the premises.
For tenants, this ruling provides additional security: in the event of difficulties, they will be able to apply for periods of grace to regularise their situation, including when the breach relates to an obligation other than the payment of rent.
