L 145-2
Article L 145-2, I-7° C. com. — the statutory basis for the specific exception allowing parties to submit a professional lease to the commercial lease statute by agreement, by derogation from the otherwise mandatory Article 57A professional lease regime.
Unequivocal
The single most important word in this area of law. The intention to submit to the commercial lease statute must be unequivocal — not presumed from the label "bail commercial", not inferred from nine-year duration, and not found in passive landlord conduct over many years.
All or none
The assembée plénière rule (Cass. ass. plén. 17-5-2002): once parties validly submit to the statute, all mandatory provisions apply — including the right of renewal. The parties cannot cherry-pick, accepting some provisions while excluding others.

The Principle: Parties Can Opt In

The commercial lease statute, when it applies by operation of law, cannot be set aside by agreement — its mandatory provisions bind the parties regardless of what their contract says. But the reverse is also true, and less obvious: where the statutory conditions are not met, the parties are free to decide to submit their lease to the statute nonetheless (Cass. 3e Civ. 6-7-1982 n° 1162 ; CA Paris 29-10-1999 n° 98-830 ; Cass. 3e Civ. 9-12-2008 n° 07-19.220). This is the extension conventionnelle du statut.

The mechanism is simple in concept. A landlord and tenant whose lease would not ordinarily attract statutory protection — because the tenant has no fonds de commerce, is not registered in the RCS, operates a professional rather than commercial activity, or leases bare land with no qualifying constructions — agree in their contract that the full commercial lease regime shall govern their relationship. From that point, the tenant acquires renewal rights, the benefit of rent review rules, and in principle the right to an eviction indemnity, exactly as if the statutory conditions had been met.

This freedom is long-established and consistently recognised by the courts. It rests on the general principle that parties may voluntarily submit to a regime more protective than the one that would otherwise apply, provided doing so does not infringe any other mandatory regime that protects the tenant.

The Limit: Other Mandatory Regimes Cannot Be Displaced

The freedom to opt into the commercial lease statute has one categorical boundary: it cannot override another mandatory legal regime that already applies to the lease (Cass. com. 20-1-1966 n° 68). The parties can choose the commercial lease statute instead of the default position of common law; they cannot choose it instead of another imperative regime. The main mandatory regimes that cannot be displaced are: residential leases governed by the loi du 1er septembre 1948 and the loi du 6 juillet 1989; professional leases governed by Article 57A of the loi 86-1290 of 23 December 1986; rural leases; and leases of public domain assets.

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The Public Domain Exception

Two private parties cannot submit to the commercial lease statute the conditions of occupation of a building constructed on the public maritime domain, even with the concession-holder's authorisation. The public domain manager cannot grant a commercial lease over the public domain, and private parties cannot do by contract what the law prohibits (Cass. 3e Civ. 20-12-2000 n° 1765 ; Cass. 3e Civ. 10-3-2010 n° 09-12.714).

The Professional Lease Exception

The professional lease regime under Article 57A of the loi 86-1290 is in principle mandatory and cannot be set aside by a conventional submission to the commercial lease statute. However, Article L 145-2, I-7° of the Code de commerce introduces a specific exception: by derogation from Article 57A, the parties may conventionally choose to apply the commercial lease statute to a lease of premises assigned to exclusively professional use. This is a carefully delimited legislative authorisation — it exists precisely because Article 57A itself cross-references Article L 145-2 as the basis on which derogation is permitted.

Beyond this specific exception, where two mandatory regimes are in conflict, the courts have developed an approach of distributive application: the provisions of whichever mandatory regime is more favourable to the tenant prevail (Cass. Civ. 2-2-2000 n° 98-15.675 ; Cass. 3e Civ. 7-11-2001 n° 99-20.962). The Paris Court of Appeal has applied this logic to hold that a general practitioner was entitled to invoke the commercial lease statute where the lease expressly submitted to it and its application was more favourable to him than the professional lease regime (CA Paris 23-11-2006 n° 04-06556).

The Requirement of Unequivocal Intention

The conventional extension of the statute requires a clear, unequivocal manifestation of the parties' shared intention to submit to it (Cass. 3e Civ. 23-3-1994 n° 535). This is not a formality — it is a substantive condition whose absence is fatal. The assessment of intention is a matter of sovereign appreciation by the trial courts (Cass. 3e Civ. 10-7-2007 n° 05-21.268 ; Cass. 3e Civ. 14-5-2008 n° 07-10.522), but the Cour de cassation requires courts to actively investigate and reason on this point (Cass. 3e Civ. 6-7-1982 n° 1162). Courts examine the contract as a whole: its title, substantive clauses, duration, statutory references, the way it has been performed, and the circumstances of its execution and renewal.

✓ Evidence Courts Have Found Sufficient
  • Clause expressly stating the tenant "shall benefit from commercial property rights" and that renewal cannot be refused for non-occupation — a clear, precise clause requiring no interpretation (Cass. 3e Civ. 20-6-1990 n° 1146)
  • Nine-year lease with triennale termination rights exercisable in the forms and delays provided by statute, invoking the then-applicable article of the decree (Cass. 3e Civ. 23-3-1994 n° 535)
  • Renewal deed reciting that the lease is governed by the statute, combined with an assignment deed (to which the landlord was a party) confirming the assignees would enjoy all rights granted by the original lease (Cass. 3e Civ. 11-12-1996 n° 1872)
  • Successive nine-year leases invoking renewal and termination rights by explicit reference to statutory articles (Cass. 3e Civ. 5-3-2003 n° 322)
  • Express clause stating intent to submit to the statute "even if all conditions are not met or are only partially met" — clear renunciation of the right to rely on non-registration (Cass. 3e Civ. 28-5-2020 n° 19-15.001)
  • All clauses conforming to the statute on duration, triennale termination, sub-letting and service of notices, combined with the title "bail commercial" and explicit statutory references (Cass. 3e Civ. 30-3-2017 n° 16-11.970)
  • Lease titled "Bail commercial de terrain nu" reproducing statutory provisions on duration, triennale notice by extra-judicial act, assignment procedure, and landlord's congé expressly citing statutory articles (CA Aix-en-Provence 15-2-2018 n° 16/01166)
✗ Evidence Courts Have Found Insufficient
  • Passive acceptance by the landlord over a long period, combined with a commercial qualification of the lease or of the authorised activity (CA Paris n° 89-21022)
  • Qualification as commercial lease, commercial destination clause, statutory rent terms, and obligation to keep the premises open and stocked — insufficient for an association tenant (Cass. 3e Civ. 20-3-1996 n° 562)
  • Nine-year lease renewed twice without any reference to the statute and without explicit statutory rights clauses — no unequivocal agreement (CA Paris 29-10-1999 n° 98-830)
  • Label "bail commercial" plus general reference to the statute — insufficient to confer right of renewal specifically (CA Toulouse 22-6-2006, confirmed Cass. 3e Civ. 14-5-2008 n° 07-10.522)
  • Four renewals granted to tenants without RCS registration — insufficient to establish unequivocal waiver of the registration condition (Cass. 3e Civ. 23-11-2010 n° 09-68.685)
  • Nine-year duration, triennale revision, no sub-letting clause — features also standard in professional leases; insufficient alone (CA Versailles 5-1-2016 n° 14/04401)
  • Contradictory avenant title combining "bail commercial — convention de mise à disposition — bail précaire — avenant" — contradictory labels defeat any claim of clear intent (CA Aix-en-Provence 20-6-2019 n° 16/17059)
  • Lease of professional premises with references to abrogated statutory provisions and non-compliant triennale and revision clauses — insufficient command of applicable law precludes finding of deliberate, informed choice (CA Paris 27-6-2024 n° 21/15783)
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The Practical Lesson from the Case Law

Three things consistently lead courts to find unequivocal intent: an explicit clause stating the statute applies "even if the conditions are not fully met"; termination and renewal clauses that cite specific statutory articles by reference rather than merely reproducing their substance; and the landlord's active participation in renewals and assignments that proceed on the basis that the statute applies. Three things consistently defeat the claim: mere use of the label "bail commercial"; clauses identical to those of a professional lease, which prove nothing; and passive conduct over time without any affirmative act of submission.

The All-or-Nothing Rule: You Cannot Cherry-Pick

Once parties have validly agreed to submit their lease to the commercial lease statute, the effect is total. In a landmark decision of the assemblée plénière, the Cour de cassation ruled that the choice of the statute entails submission to all of its mandatory provisions (Cass. ass. plén. 17-5-2002 n° 488). The parties cannot pick and choose: they cannot accept the rent review provisions while excluding the right of renewal, or retain the triennale break option while disapplying the eviction indemnity rules. The mandatory provisions apply as a block.

The Assemblée Plénière Rule — Cass. ass. plén. 17-5-2002
All mandatory provisions apply — or none do.

Where parties have voluntarily submitted their lease to the commercial lease statute, they are bound by every mandatory provision of that statute. A clause that purports to exclude the right of renewal, or any other mandatory element, while retaining the benefit of other statutory provisions is incompatible with the nature of the voluntary submission.

The right of renewal is of the essence of the statute and is among its mandatory provisions. It cannot be denied to the tenant on the grounds that they do not satisfy the ordinary statutory conditions, once the parties have chosen to submit to the statute: the landlord has waived the right to rely on those conditions (Cass. 3e Civ. 19-4-2000 n° 578 ; Cass. 3e Civ. 28-5-2020 n° 19-15.001).

The Conditions the Landlord Cannot Reactivate at Renewal

Where the conventional extension clause is general — stating that the statute applies without specifying which condition is absent — the landlord cannot at renewal invoke the absence of any ordinary statutory condition to defeat the tenant's renewal right. All conditions are treated as waived (Cass. 3e Civ. 19-4-2000 n° 578 ; Cass. 3e Civ. 1-7-2003 n° 861). In particular, RCS registration is not a mandatory condition for renewal under a conventional extension — requiring non-commercial tenants to register would be an impossible demand (Cass. 3e Civ. 9-2-2005 n° 197 ; Cass. 3e Civ. 28-5-2020 n° 19-15.001).

Where the extension clause is specific — identifying the precise condition that is absent — the picture is more nuanced. The court must examine which mandatory condition the parties agreed to set aside and apply the statute accordingly (Cass. 3e Civ. 21-5-2014 n° 13-14.474). If the parties agreed to apply the statute despite the absence of a fonds de commerce, the landlord cannot at renewal require the existence of a fonds de commerce as a precondition for renewal.

An Alternative: Selective Contractual Benefits Without Full Extension

The question has arisen whether parties can construct a sui generis arrangement that grants specific benefits drawn from the statutory regime — such as a right of renewal — without committing to the entire statute. The Paris Court of Appeal has accepted that a landlord may offer a specific statutory benefit to a tenant who could not otherwise claim it, without that offer constituting a full conventional extension of the statute (CA Paris 6-12-1991 n° 90-10344). Under this approach, successive offers of renewal by landlords whose tenants no longer operated a fonds de commerce did not constitute a permanent statutory submission: the landlords were free at each subsequent renewal to decline, without the tenant being able to claim an eviction indemnity.

This alternative — a sui generis arrangement built on common law with selective statutory borrowings — is conceptually distinct from the conventional extension. Parties who genuinely want the benefits of the statute without the obligations must construct their lease with great care on this basis, because the risk of being held to have crossed into full conventional extension is real if the contract as a whole manifests an unequivocal intent to submit.

Key Points: Extending the French Commercial Lease Statute by Agreement
Parties whose lease does not satisfy the ordinary statutory conditions may voluntarily submit to the commercial lease statute (extension conventionnelle) — this freedom is firmly established (Cass. 3e Civ. 6-7-1982 n° 1162). From that point, the tenant acquires renewal rights and the right to an eviction indemnity exactly as if the statutory conditions had been met.
The submission cannot override another mandatory regime already governing the lease. The public domain cannot be the object of a commercial lease by any means. The sole exception is the professional lease: Art. L 145-2, I-7° C. com. expressly permits parties to choose the commercial lease statute instead of the Article 57A professional lease regime.
The intent to submit must be unequivocal. Explicit statutory clauses, specific article references, and active landlord participation in renewals and assignments are the strongest evidence. The label "bail commercial" and nine-year duration alone are consistently insufficient (Cass. 3e Civ. 14-5-2008 n° 07-10.522).
Passive landlord conduct over many years, multiple renewals without explicit statutory references, and clauses that are also standard in professional leases do not establish unequivocal intent. A lease non-compliant with the statute's own mandatory provisions, or referencing abrogated law, is unlikely to be found a deliberate, informed submission.
Once the conventional extension is validly established, all mandatory provisions apply — the parties cannot exclude the right of renewal or any other mandatory element while retaining others (Cass. ass. plén. 17-5-2002 n° 488). The right of renewal is of the essence of the statute.
Where the extension clause is general, no ordinary statutory condition can be reactivated at renewal to defeat the tenant's renewal right — including RCS registration, which is not a mandatory condition for non-commercial tenants (Cass. 3e Civ. 9-2-2005 n° 197). Where the clause is specific, the court examines which condition was waived (Cass. 3e Civ. 21-5-2014 n° 13-14.474).
A selective grant of specific statutory benefits without full submission remains possible as a sui generis arrangement (CA Paris 6-12-1991), but must be constructed with great care — if the contract as a whole manifests unequivocal intent to submit, the parties will be held to the full statute with all its mandatory consequences.
Drafting or Reviewing a Conventional Extension Clause?

Whether you are a landlord considering granting commercial lease protection to a tenant who does not ordinarily qualify, or a tenant seeking to establish that a lease submitted to the statute, the wording of the clause and the conduct of the parties are both decisive.

Speak with a French Lawyer

This article is for general information and educational purposes only. It does not constitute legal advice. The legal analysis reflects the provisions of the Code de commerce and the case law cited. French commercial lease law is a complex and evolving area. Always seek qualified legal advice for your specific situation before making any decision with legal consequences.