Right of pre-emption and preferential agreement in favour of the lessor
Invalidity of clauses preventing the lessee from assigning his commercial lease
“Are also null and void, whatever their form, any agreements intended to prevent the tenant from transferring his lease or the rights he holds under this chapter to the purchaser of his business or company. (L145-16 Commercial Code)
The lessor’s right of first refusal on the sale of the business
A clause stipulating the lessor’s right of first refusal in the event of the sale of a business is valid.
The clause is without prejudice to the lessee’s rights under the commercial lease statute. (Cass. civ. 3, 12-07-2000, n° 98-22.000, published, n° 198)
However, this clause is only lawful on condition that the lessee can sell his business and assign his lease to the buyer of his choice, at a price of his choice. (Cass. com., 17-02-1960, n° 57-11.835, published, n° 68)
A lessor with a right of pre-emption may invoke the irregularity of the notification of the transfer of the business, even if he has requested additional information. In this case, the judges consider that the lessor did not unequivocally express his intention to waive his right of pre-emption. (Cass. com., 13-11-2003, n° 01-02.620, unpublished)
Pre-emptive agreement enables lessor to choose purchaser of business goodwill
The parties may include a preferential agreement in the lease contract, enabling the lessor to choose the purchaser of the business. (Cass. civ. 3, 12-07-1995, n° 93-11.666, published, n° 184)
The purchaser of the business is not obliged to verify the intentions of the beneficiary of a preference agreement stipulated in the lease. Thus, the lessor must prove that the transferee had been informed of his intention to avail himself of the pact in order to convict him.
(Cass. civ. 3, 29-06-2010, n° 09-68.110, Mme Jeannette Barande, épouse Gard, F-D)
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