Practical Checklist: Before You Sign
Clauses caught by Arts. L. 145-15 and L. 145-16 C. com. are réputées non écrites — deemed unwritten — and treated as if they never existed. They cannot be ratified by the passage of time and are not subject to any limitation period. The sanction applies to all leases including those in force at the Pinel Act’s commencement (Cass. 3e civ., 19 November 2020).
A clause prohibiting assignment of the lease with the fonds de commerce is struck out (Art. L. 145-16). A clause regulating the assignment procedure (notarial form, landlord approval, prior notice, conventional pre-emption, landlord’s presence at the deed) remains valid. The distinction between prohibition and regulation is frequently litigated.
For leases concluded from 1 October 2016: if the lease is an adhesion contract (Art. 1110 C. civ.) — non-negotiable standard-form clauses pre-determined by the landlord — any clause not individually negotiated that creates a significant imbalance between the parties is deemed unwritten (Art. 1171 C. civ.). Courts assess the reality of negotiation, not the label.
A renewed lease is a new lease: clauses carried over from the expired lease are not grandfathered. They are subject to the rules in force at the date of renewal — including the 2016 reform if the renewal falls on or after 1 October 2016. Renewal is both an opportunity and a risk for both parties.
Any waiver of a statutory protection must be express, specific, and made after the right has arisen — never in the original lease. A prospective blanket waiver in the lease itself is worthless. Some protections (e.g. the prohibition on displacing the statute once it has attached) cannot be waived at all.

The Baseline: What You Cannot Agree Away

A French commercial lease is not a blank sheet. Beneath whatever the parties write, French law lays down a set of rules that apply regardless of the lease terms — rules that cannot be excluded, limited, or waived in advance by contract. They exist to protect the tenant’s ability to operate their business, preserve the economic value of the fonds de commerce, and ensure that the basic equilibrium of the commercial lease relationship is not dismantled by a landlord writing the lease on their own terms.

The practical consequence is straightforward: if a clause in your lease conflicts with one of these rules, the clause does not bind you. The law treats it as if it were never written. You can raise its non-existence at any time — as a claim, as a defence, or preventively before a dispute arises.

Clauses Automatically Struck Out Under the Commercial Code

Articles L. 145-15 and L. 145-16, as amended by the Pinel Act (Law n° 2014-626 of 18 June 2014), set out a definitive list of clauses that are réputées non écrites — deemed unwritten — whatever form they take. The clause is not merely void: it is treated as if it does not exist. It cannot be ratified by the passage of time, and a tenant who failed to challenge it within the two-year limitation period is not barred from raising its non-existence at any later stage. The Court of Cassation confirmed this applies to all leases, including those in force at the date the Pinel Act came into force (Cass. 3e civ., 19 November 2020, n° 19-20.405; Cass. 3e civ., 30 June 2021, n° 19-23.038).

Category STRUCK OUT REMAINS VALID
Renewal rights Any clause that defeats the tenant’s right to apply for renewal Conditions on renewal that do not suppress the right itself
Lease duration Any clause fixing a term shorter than 9 years without satisfying the derogatory lease conditions Agreed break options at 3-year intervals within the 9-year term
Rent revision Any clause suppressing the tenant’s right to request rent revision at the 3-year review, or locking the rent in a way that defeats Arts. L. 145-37 to L. 145-41 Freely negotiated indexation clauses, rent steps, and initial rent-free periods
Resolutory clause Any clause structuring the clause résolutoire so as to bypass the statutory commandement and one-month grace period requirement A clause résolutoire that respects Art. L. 145-41 in full
Works & termination Any clause allowing the landlord to terminate by reason of works in conditions other than those permitted by Art. L. 145-42 Contractual works allocation clauses that do not touch the tenant’s right to remain
Assignment prohibition (Art. L. 145-16) Any clause prohibiting the tenant from assigning their lease to the acquirer of their fonds de commerce Clauses regulating assignment: notarial form, landlord approval, prior notice, conventional pre-emption, landlord’s presence at the deed
Despecialisation rights (Arts. L. 145-47–54) Any clause preventing the tenant from exercising their statutory right to extend or change the permitted activity Agreed restrictions on activity that do not suppress the déspécialisation right entirely
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Warning — Disguised Structures

French law treats fraudulent devices with the same rigour as direct contraventions. A sequence of short-term derogatory leases passed between the same parties for the same premises and the same business — designed to avoid the 9-year statutory term — is struck down as fraud. So is the use of a location-gérance structure to disguise what is in substance a commercial sub-lease. Once the commercial lease statute attaches to a relationship, it cannot be contractually displaced by a new arrangement between the same parties for the same premises and the same fonds de commerce.

What Changed in 2016: New Grounds to Challenge Lease Clauses

The reform of French general contract law by Ordonnance n° 2016-131 of 10 February 2016 — ratified with amendments by Law n° 2018-287 of 20 April 2018 — introduced new rules that apply to commercial leases concluded on or after 1 October 2016, and in some cases to leases renewed after that date. A renewed lease is treated as a new lease and is fully subject to the reform from the date of renewal.

Good Faith Obligations (Art. 1104 C. civ.)

Contracts must be negotiated, formed, and performed in good faith. In practice, establishing bad faith against a commercial party remains difficult. Courts have accepted that a landlord who exercises a contractual right (such as the clause résolutoire) in a manifestly disloyal manner may be sanctioned. Courts have consistently refused readings of good faith that would allow a judge to rewrite the substance of what the parties agreed.

Pre-Contractual Disclosure (Art. 1112-1 C. civ.)

A party who knows information that would be determinative of the other’s consent must disclose it, provided the other party legitimately does not know it. In leases, its main practical reach is at the performance stage: a landlord who knows the premises cannot be used for the agreed purpose — due to co-ownership rules, planning restrictions, or an administrative order — and says nothing, may be liable under this obligation in addition to dol.

The Adhesion Contract Problem (Arts. 1110 & 1171 C. civ.)

This is the provision with the most significant practical potential for commercial leases. Article 1110 defines an adhesion contract as one containing a set of non-negotiable clauses, pre-determined by one of the parties. Most commercial leases are drafted by the landlord or their advisers. If the lease is characterised as an adhesion contract, Article 1171 applies: any clause that was not individually negotiated and that creates a significant imbalance between the parties’ rights and obligations is deemed unwritten. Indicators include: a clause removing a right the tenant would otherwise have; obligations on the tenant with no counterpart; or disproportionate risk exposure without compensation.

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Warning — “Freely Negotiated” Recitals

Landlords frequently insert recitals stating that the lease has been freely negotiated and is a contrat de gré à gré. These do not bind a court. A court assessing whether the lease is an adhesion contract will look at the reality of the negotiation, not the label. The more insistently a lease affirms it was freely negotiated, the more that insistence may be read as an attempt to forestall exactly the finding it claims to pre-empt.

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Practical Point — Negotiating Leverage

A tenant who can demonstrate they successfully negotiated specific clauses — a rent-free period, a different allocation of works, a modified break option — is in a stronger position to argue the lease as a whole is freely negotiated. Conversely, a tenant who signed a pre-printed standard form with no substantive discussion may have stronger grounds to invoke Art. 1171 against genuinely imbalanced clauses.

Hardship and Renegotiation (Art. 1195 C. civ.)

If an unforeseeable change of circumstances renders performance excessively burdensome for a party who did not accept that risk, that party may ask the other to renegotiate. If renegotiation fails, either party may ask a court to adapt or terminate the contract. In commercial leases, the practical reach is limited: rent is already subject to the three-year statutory review. The imprévision doctrine may be more relevant where a change fundamentally alters the economics of the lease in a way the revision mechanism does not address — permanent closure of an access route, a regulatory change destroying the permitted use, or structural change in the commercial environment. Courts tested this during Covid-19 and were cautious: they were reluctant to use imprévision to rewrite rent obligations during forced closures.

Unilateral Termination Without Going to Court (Art. 1226 C. civ.)

A creditor may terminate the contract unilaterally by notification in the event of a sufficiently serious non-performance by the other party — subject to a prior mise en demeure except in cases of urgency. This exists alongside, and is distinct from, the lease’s clause résolutoire. A landlord relying on Art. 1226 outside the clause résolutoire takes a risk: the bar for dispensing with prior notice on grounds of urgency is high (Cass. 3e civ., 25 January 2024).

Does the Lease Date Matter? Temporal Application of the Reform

Lease signed / renewed What applies
Before 1 October 2016 Old law governs. The 2016 reform (adhesion contracts, hardship, unilateral termination) does not apply. Arts. L. 145-15 and L. 145-16 (including the Pinel 2014 réputée non écrite sanction) apply in full.
1 October 2016 – 1 October 2018 The Ordonnance as originally enacted applies. Good faith (Art. 1104), pre-contractual disclosure (Art. 1112-1), adhesion contracts and significant imbalance (Arts. 1110 & 1171 first version), hardship (Art. 1195), and unilateral termination (Art. 1226) all apply.
From 1 October 2018 The full reform as ratified applies, including the revised definition of adhesion contracts (Art. 1110 al. 2 as amended). Nine articles whose content was substantially changed also apply to pre-existing leases from this date as regards their future effects.
Renewed lease (any date) A renewed commercial lease is a new lease from the date of renewal. Fully subject to the reform in force at that date regardless of when the original lease was concluded. Clauses carried over from the expired lease are not grandfathered.
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Warning — Lease Renewals

Every renewal is both an opportunity and a risk. Clauses from the expired lease that were compliant with the old law may be vulnerable to challenge under the 2016 reform once the lease is renewed. Renewal is the moment to review and update all lease terms, ensuring that clauses which would be deemed unwritten under current rules are not inadvertently carried over into the new lease.

Can a Tenant Waive These Protections?

Some protections can be waived — but only under strict conditions. A tenant cannot waive a statutory right in advance, prospectively, at the time of signing the lease. A general clause in the lease stating that the tenant renounces any and all statutory protections is worthless. The waiver must come after the right has been acquired and the tenant is in a position to invoke it. It must be express and unambiguous — a vague or general renunciation will not withstand judicial scrutiny, particularly following the 2016 reform.

Practically, a tenant may validly waive their right to an eviction indemnity after receiving the landlord’s refusal to renew, once they know what they are giving up. They cannot do so at the time they sign the original lease. Some protections cannot be waived at all: the prohibition on displacing the statute once it has attached — between the same parties, same premises, same business — is absolute.

Practical Checklist: Reviewing an Existing Lease for Unenforceable Clauses
Run the Arts. L. 145-15 and L. 145-16 check first: identify every clause that limits renewal, shortens the 9-year term, restricts rent revision, structures the clause résolutoire to bypass Art. L. 145-41, or purports to prohibit assignment. These are automatically struck out with no limitation period — they can be raised at any time, including mid-dispute as a defence.
For post-October 2016 leases: assess the adhesion contract question: gather evidence of negotiation (or its absence) — exchanged drafts, correspondence, agreed departures from the standard form. If no substantive negotiation took place, identify clauses creating significant imbalance for an Art. 1171 challenge. Do not be deflected by “freely negotiated” recitals.
At every renewal, treat the new lease as a fresh document: do not copy and paste clauses from the expired lease without running the current-law review. For landlords, update the lease to remove clauses that are now struck out or challengeable. For tenants, flag at the outset of renewal negotiations any clause from the expired lease that would be struck out or challengeable under current rules.
For imprévision claims: assess the statutory review mechanism first: if the change in circumstances affects rent levels and the three-year review is available, use it. Reserve Art. 1195 for situations where the statutory mechanism genuinely does not address the problem — and document the change and the refusal to renegotiate carefully before making any unilateral adaptation claim.
Check any purported waiver of statutory rights for validity: confirm it was made after the right arose, that it is express and specific, and that the tenant had the opportunity to seek advice. If the waiver was included in the original lease text, it is almost certainly void as prospective. A valid waiver made after the right arose should be documented in a separate standalone act.
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Legal Notice. This article is for general information and educational purposes only. It does not constitute legal advice. Laws and regulations may have changed since publication. Always seek qualified French legal advice before concluding, amending, or disputing a French commercial lease.