Assigning a Commercial Lease in France With the Business: The Right That Cannot Be Prohibited

The Rule Against Prohibition: Article L 145-16

Article L 145-16 of the Code de commerce is a mandatory provision of the commercial lease statute. Its first paragraph states that any clause prohibiting the tenant from assigning the lease to the acquirer of its fonds de commerce or to the beneficiary of a universal transfer of its professional patrimony is deemed unwritten. The word is precise: the clause is not merely unenforceable — it is treated as if it were never there. The landlord cannot rely on it to refuse the assignment, to demand compensation for permitting it, or to obtain lease termination on grounds of breach.

The protection applies to assignments made in connection with the sale of a fonds de commerce — a genuine going concern with a clientele attached to it — and to the universal transfer of an individual entrepreneur's professional patrimony (from May 2022). It does not extend to isolated assignments of the lease right alone, and it does not prevent the landlord from imposing reasonable conditions on the assignment provided those conditions do not amount to a prohibition in practice. The protection also includes the tenant's right to assign the statutory rights flowing from the lease — notably the right to renewal and the right to an eviction indemnity — to the assignee. A clause attempting to strip these rights from the assignee is equally void.

What Counts as a Prohibited Clause

The courts have interpreted the scope of prohibited clauses broadly. An absolute and general prohibition on any assignment is the clearest case. But partial prohibitions and structurally restrictive clauses have also been struck down where their practical effect is to make assignment impossible or inaccessible. Clauses requiring the tenant to operate the business personally for the last three years of the lease have been held void, because they prevent the tenant from selling the business — and thus the lease — during that period (Cass. 3e Civ. 23-7-1986). A clause prohibiting the pledging of the lease right without authorisation, where the prohibition is general and absolute, has also been struck down (Cass. 3e Civ. 11-5-1982). A clause restricting assignment to natural persons only — excluding legal entities — is void for the same reason. The underlying principle is that the tenant's right to sell its business, and to transfer the lease as part of that sale, must remain economically real.

What Landlords Can Still Do: Valid Restriction Clauses

Article L 145-16 prohibits prohibition; it does not prohibit restriction. The distinction is crucial and has been confirmed in a consistent line of Cour de cassation authority. Clauses that limit or organise the tenant's right to assign — without making assignment structurally impossible — are valid.

The Successor-in-Commerce Clause

Among the valid restriction clauses, the most commercially significant is the clause de successeur: a provision that the tenant may only assign the lease to a "successor in the same business" or "successor in the commerce." The majority position, confirmed by the Cour de cassation in several rulings, is that such a clause requires the assignee to have acquired the fonds de commerce of the assignor — not merely to be operating in the same sector (Cass. 3e Civ. 8-2-1984; 3-1-1985). A person who acquires only the lease right and then begins operating a similar business from the premises does not satisfy the clause; the clause requires that the fonds itself — with its clientele — has been transferred to the same person.

The critical implication is that a tenant who wishes to sell the lease to a buyer operating a different type of business must first negotiate with the landlord for permission to change the permitted activity (déspécialisation) before the assignment. In practice, landlords granting this permission sometimes require an increase in rent, a one-off payment, or both.

Partial and Divisible Fonds

Article L 145-16 does not distinguish between a total sale of the business and a partial sale. A clause prohibiting the assignment of the lease in connection with a partial sale of the business — where the part being sold constitutes an autonomous branch of activity capable of independent operation — is equally void. The same reasoning applies to an indivisible business: a landlord cannot prevent a co-owner of an indivisible business from assigning their share.

This article is for general information and educational purposes only. It does not constitute legal advice. The legal framework described reflects French law as at 2025. Always seek qualified legal advice before any lease assignment or business sale.