Imprescriptible
The action to have a clause declared réputée non écrite under Art. L 145-15 or L 145-16 C. com. carries no prescription period — it can be brought at any time during the life of the lease. This is the Pinel law's defining change: time never consolidates an illegal clause.
5 years
The action to recover sums paid under the struck clause is separate and does prescribe: 5 years under Art. 2224 C. civ. from the date the tenant knew or ought to have known the facts. Recovery is limited to sums paid in the 5 years before proceedings.
18 June 2014
The Pinel law cut-off. Leases in proceedings before this date: illegal clauses were null, subject to a 2-year prescription from the date of the lease (Art. L 145-60). After two years, the clause was consolidated and could not be attacked by action — only as a perpetual exception in defence, with strict limits.

Which Clauses Are Caught by Article L 145-15

Article L 145-15 of the Commercial Code, as amended by the Pinel law of 18 June 2014, declares réputés non écrits — deemed never to have been written — all clauses, stipulations and arrangements, whatever their form, that have the effect of defeating the right of renewal established by the commercial lease statute, or that circumvent the provisions of Articles L 145-4, L 145-37 to L 145-41, the first paragraph of Article L 145-42, and Articles L 145-47 to L 145-54. In practical terms this encompasses clauses that undermine:

  • The tenant's right to a minimum nine-year lease term (Art. L 145-4)
  • The right to renewal, and the rules governing congé, refusal of renewal, and eviction indemnity (Arts. L 145-37 to L 145-41)
  • The ceiling on rent increases applicable to renewed leases (Art. L 145-42 al. 1)
  • The rules on despecialisation — the tenant's right to change or extend their permitted activity (Arts. L 145-47 to L 145-54)

Article L 145-16 adds a second category: clauses that purport to prevent the tenant from assigning the lease or the rights derived from the statute to the buyer of their fonds de commerce, to the acquirer of their business, or to the beneficiary of a universal transfer of their professional patrimony. These clauses were previously null; they are now equally réputées non écrites under the 2014 reform.

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What the Reform Changed

Before the Pinel law, these clauses were sanctioned by nullité. The key practical difference is timing: the action in nullity was subject to the two-year prescription of Article L 145-60 of the Commercial Code, running from the date the lease was signed. After two years, the clause was consolidated. The réputé non écrit sanction is imprescriptible: time never consolidates an illegal clause.

The Court's Power: Constrained, Not Discretionary

Once the court determines that a clause falls within the scope of Articles L 145-15 or L 145-16, it has no latitude. It must find that the clause is deemed non-written. It cannot choose to instead pronounce the nullity of the clause, and it cannot modify the clause's content. The only available outcome is the total erasure of the clause from the lease.

Critically, the court has no power to annul the lease itself: the lease continues, amputated of the offending clause (C. civ. Art. 1184). This is so even where the struck clause was a determining element of one party's consent to the lease. This distinguishes the réputé non écrit mechanism sharply from nullity, under which a court might in principle annul the whole contract if the voided clause was essential to the agreement.

Effects of the Réputé Non Écrit Sanction

The clause deemed non-written constitutes a legal fiction: although written into the lease, it is treated as though it never existed. Three major consequences follow.

Imprescriptibility of the Action

The action to have a clause declared non-written is not subject to any prescription period (Cass. 3e civ. 19-11-2020 n° 19-20.405 ; Cass. 3e civ. 30-6-2021 n° 19-23.038 ; Cass. 3e civ. 16-11-2023 n° 22-14.091 ; Cass. 3e civ. 23-1-2025 n° 23-18.643). A tenant may raise the non-written character of a clause at any point during the lease's life — whether in the first year or the twenty-fifth. This deliberately reverses the effect of the two-year prescription that had previously allowed illegal clauses to become entrenched.

Recovery of Sums Paid Under the Struck Clause: Five-Year Limit

Although the action to strike the clause is imprescriptible, the separate action to recover sums paid pursuant to that clause is not. Since the struck clause is treated as never having existed, sums paid under it are payments without legal basis (indu). The tenant's action for recovery is governed by Article 2224 of the Civil Code: it prescribes in five years from the date the tenant knew or ought to have known the facts giving rise to the claim. Courts have applied this to mean that a tenant may only recover sums paid in the five years preceding their legal proceedings (CA Paris 4-4-2012 ; CA Paris 9-11-2023 ; Cass. 3e civ. 23-1-2025 n° 23-18.643).

One important precision on the calculation: since the clause is deemed never to have existed, the restitution claim must be calculated based on what the rent would have been in the absence of the struck clause — not simply on the basis of the rent actually paid as at the start of the five-year period (Cass. 3e civ. 23-1-2025 n° 23-18.643). This distinction matters particularly for indexation clauses: the restitution must be recalculated from the origin of the clause on a proper basis.

Can a Party Waive the Protection?

The dominant academic view holds that, since the 2014 reform replaced nullity — which could be waived once the right had accrued — with the réputé non écrit sanction, the nature of the public order has shifted from protective order (which could be renounced) to directive order (which cannot). On this analysis, a tenant cannot validly waive their right to invoke the non-written character of an illegal clause, even with full knowledge of the fact that the clause is illegal. The Cour de cassation had not yet expressly ruled on this point at the time of the most recent reported decisions, and practitioners should treat waivers of this right with caution.

Before 18 June 2014: Nullity
Illegal clause sanctioned by nullité. Action to annul subject to 2-year prescription from lease date (Art. L 145-60 C. com.). Two years after signing, clause was consolidated. Perpetual exception defence available, but only if contract had received no execution. Waiver of nullity possible once right accrued.
After 18 June 2014: Réputé Non Écrit
Illegal clause treated as never written. Action imprescriptible — no time limit ever. Applies immediately to ongoing leases. Recovery of sums: 5-year prescription under Art. 2224 C. civ. Lease continues without the clause (C. civ. Art. 1184). Dominant view: waiver not possible.

The Pre-2014 Nullity Regime: Still Relevant

Two-Year Prescription from the Date of the Lease

Under the pre-2014 regime, the action to annul an illegal clause was governed by the two-year prescription of Article L 145-60 of the Commercial Code. The Cour de cassation had consistently held that this period ran from the date of conclusion of the lease — not from the date the tenant first suffered loss, not from when the clause was first applied, and not from when a subsequent avenant was signed unless that avenant constituted an entirely new lease (Cass. 3e civ. 1-2-1978 ; Cass. 3e civ. 3-2-2010 ; Cass. 3e civ. 6-6-2019). After two years, an illegal clause in a French commercial lease signed before June 2014 was treated as consolidated and could no longer be attacked by action.

The Perpetual Exception Defence — and Its Limits

Even after prescription of the main action, a party could invoke the nullity of an illegal clause as a perpetual exception in defence — that is, where the other party sought to enforce the clause, the defendant could oppose its nullity at any time, without limit (Cass. com. 13-12-1976 ; Cass. 3e civ. 25-3-1998). However, this exception defence was strictly limited to defendants. A tenant who assigned the bailleur in a claim for nullity was the claimant, not the defendant, and could not benefit from the perpetual exception (Cass. 3e civ. 24-11-1999). A further critical restriction: the exception defence was only available if the contract had received no execution at all (Cass. 2e civ. 1-12-1998 ; Cass. 3e civ. 14-5-2003). In practice, for a commercial lease that has been in operation for years, this meant the perpetual exception defence was almost never available.

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Practical Consequence for Existing Leases

For any French commercial lease currently in force — regardless of when it was signed — an illegal clause under Art. L 145-15 or L 145-16 can be struck at any time by court proceedings commenced now, without any time limit. Landlords with legacy leases containing aggressive restriction-of-assignment clauses or clauses purporting to limit renewal rights should consider reviewing and renegotiating rather than waiting for the tenant to act.

Illegal Clauses in French Commercial Leases: The Essentials
Art. L 145-15 (as amended by Loi Pinel 2014) renders réputées non écrites all clauses defeating the right of renewal, the 9-year minimum term, rent revision rules, and despecialisation rights. Art. L 145-16 renders non-written all clauses purporting to prevent assignment of the lease to a buyer of the fonds de commerce.
The court has no discretion: it must declare the clause non-written. It cannot modify the clause or annul the whole lease. The lease continues without the clause (C. civ. Art. 1184) — even if the struck clause was a determining element of one party's consent.
The action to strike the clause is imprescriptible — it can be brought at any time during the life of the lease (Cass. 3e civ. 19-11-2020 ; confirmed Cass. 3e civ. 23-1-2025). This deliberately reverses the effect of the two-year prescription that had previously allowed illegal clauses to become entrenched.
The action to recover sums paid under the struck clause prescribes in 5 years under Art. 2224 C. civ.; recovery is limited to sums paid in the 5 years before proceedings. Restitution is calculated on what rent would have been without the clause — not simply on the rent paid at the start of the five-year window (Cass. 3e civ. 23-1-2025 n° 23-18.643).
Pre-2014 regime: illegal clause was null; 2-year prescription from date of lease (Art. L 145-60), running from date of conclusion — not first application, not from any subsequent avenant unless that avenant constituted an entirely new lease (Cass. 3e civ. 3-2-2010).
Pre-2014 perpetual exception defence: available to a defendant opposing enforcement of an illegal clause — but not to a claimant; and only if the lease had received no execution at all (Cass. 3e civ. 14-5-2003). In practice, almost never available for a lease already in operation.
A Clause in Your French Commercial Lease Looks Illegal?

Whether you are a tenant seeking to challenge a restriction-of-assignment clause or a landlord reviewing legacy lease terms, the imprescriptible character of the réputé non écrit sanction means the challenge can arrive at any time — even decades after the lease was signed.

Speak with a French Lawyer

This article is for general information and educational purposes only. It does not constitute legal advice. Laws may have changed since publication. Always seek qualified French legal advice before relying on this content.