The Legislative Framework: What Can and Cannot Be Prohibited
Article L 145-16, alinéa 1 of the Code de commerce establishes the public-order baseline. Any clause that has the effect of prohibiting a tenant from assigning its lease to the acquirer of its fonds de commerce, or to the beneficiary of the universal transfer of its professional patrimony, is deemed unwritten. The tenant's right to assign in those two contexts is absolute and cannot be contracted away. This protection extends to partial sales of the business where the activities transferred constitute an independent, autonomous branch with its own clientele.
What the statute does not protect is the standalone assignment — the transfer of the lease right in isolation, without a business sale. For that category, landlords have wide contractual freedom: they can prohibit it entirely, restrict the permissible assignees to a defined category, require prior written consent, reserve a pre-emption right, or impose procedural conditions. The critical practical question is always: does the proposed assignment fall within the protected business-sale category, or is it a standalone transfer subject to the full range of contractual restrictions?
The Main Categories of Restriction Clause
Authorises assignment only within the framework of a business sale or TUP, tracking the Article L 145-16 protection exactly. The most restrictive valid clause. The tenant cannot assign the lease in isolation — only when a genuine business transfer accompanies it.
Requires the landlord's prior written approval of the assignee. Valid even for assignments within a business sale. The landlord assesses the proposed assignee's financial standing, solvency, and commercial profile. Refusal must be justified and is subject to judicial review for abuse.
Requires the landlord to be called to attend the assignment deed, but without any right to approve or refuse the assignee. The landlord is notified and can verify the cession's regularity, but cannot block it. A landlord who voluntarily absents themselves after proper summons cannot later contest the assignment on grounds of non-attendance.
Gives the landlord the right to step into the shoes of the proposed assignee and take the assignment on the same terms. Valid. Does not give the landlord a right to refuse — only the right to substitute themselves as the acquirer if they choose to exercise it within the contractual period.
The "Successor in Commerce" Clause: A Persistent Source of Litigation
The clause successeur — a provision authorising assignment only to a "successor in the commerce" or "successor in the same commerce" — has generated decades of litigation. The Cour de cassation has treated these clauses as clear and precise, declining to interpret them and applying them literally. The prevailing judicial reading is that the clause requires the assignee to acquire the tenant's fonds de commerce — not merely to exercise the same activity in the same premises (Cass. 3e Civ. 3-1-1985 n° 83-15.665). The tenant who wishes to assign the lease to someone intending to operate a different activity must first go through the déspécialisation process before the assignee can be considered a valid successor in the commerce. Landlords routinely use this as a lever to obtain a rent increase or additional payment as the price of their consent to the change of activity.
The clause successeur is considered an outmoded drafting choice and is rarely found in modern standard-form leases. Courts have found these clauses ambiguous and produced inconsistent outcomes depending on the precise wording. Landlords who want to restrict the tenant's right of standalone assignment should use the clear statutory formulation: "the tenant may not assign this lease except to the acquirer of its fonds de commerce or to the beneficiary of the universal transfer of its professional patrimony if it is an entrepreneur individuel." This language is precise, tracks the statutory framework, and avoids the interpretive disputes that have plagued the successeur formulations.
The Agrément Clause: What the Landlord Can and Cannot Do
Where the lease contains a clause requiring the landlord's prior approval of the proposed assignee, the landlord is entitled to assess the candidate's solvency, commercial standing, and moral profile. The limits on the agrément right are equally clear: the landlord's refusal cannot be discretionary. It must be based on a legitimate reason bearing a genuine relationship to the legitimate purpose of the agrément — assessing the proposed assignee's capacity to perform the lease obligations. Refusals based on the landlord's desire to obtain a higher rent, to recover the premises for redevelopment, to avoid renewing the lease, or to extract collateral concessions from the tenant are abusive and can be challenged.
| Refusal ground | Abusive? | Judicial response |
|---|---|---|
| Desire to obtain a higher rent from the incoming tenant | Yes | Court can override and authorise the assignment; damages may follow |
| Intention to redevelop and avoid renewing leases | Yes | Not a legitimate assessment of the proposed assignee's quality |
| Failed prior negotiations with the proposed assignee on lease terms | Yes | The failure of separate negotiations is not a refusal ground under an agrément clause (Cass. 15-6-2011 n° 10-16.233) |
| Silence and stalling without any stated reason | Yes | Absence of justification is itself abusive; injunction and/or damages available (Cass. 9-5-2019 n° 18-14.540) |
| Genuine concerns about the proposed assignee's financial standing or solvency | No | This is the legitimate purpose of the agrément clause; landlord may require supporting documentation |
| Requiring separate leases for commercial and residential components as a condition | No | Valid condition where the commercial exploitation is not compromised by the separation |
Judicial Override: When the Court Steps In
A landlord's refusal of agrément is not a dead end. Where the refusal is abusive or unjustified, the tenant can apply to court for judicial authorisation of the assignment. The court can authorise the assignment over the landlord's objection (Cass. 3e Civ. 16-11-2023 n° 22-17.567). The juge des référés can grant urgent provisional authorisation where the landlord's grounds are manifestly insufficient. The judicial authorisation is personal to the specific assignee named in the application — it does not extend to a company subsequently incorporated by that individual to take the assignment. In addition to judicial override, a tenant whose assignment is blocked by an abusive refusal has a damages claim for the lost assignment price.
Where the landlord is required to give prior consent and fails to respond, mere knowledge of the assignment, or receipt of rent payments from the assignee, does not establish tacit consent where the lease requires express written approval. However, where the landlord's conduct goes beyond passive awareness — for example, by authorising the proposed assignee to carry out fitting-out works in the premises, or by engaging in lease negotiations with the assignee as if they were already the new tenant — courts have found tacit consent. The threshold is a positive act inconsistent with the position of a landlord who has not yet agreed to the change of tenant.
The Landlord's Pre-emption Right
A pre-emption clause gives the landlord the right to substitute itself for the proposed acquirer and take the assignment on the same terms that the tenant and the third-party acquirer have agreed. Unlike an agrément clause, it does not give the landlord a right to refuse the assignment: the tenant remains free to sell on whatever terms it negotiates, and the landlord can only decide whether to step in. The pre-emption right must be exercised within the contractual period — typically one month — running from the date of notification of the proposed terms. A landlord cannot unilaterally shift the start of the pre-emption period by requesting additional information: if the notification is not challenged as invalid, the period runs from the original notification. Whether a pre-emption clause applies to a TUP is unresolved; the prevailing view is that it does not, given the TUP's public-order purpose of enabling a sole trader to transfer their entire professional estate without restrictions.
Clauses That Are Void Despite Appearing Restrictive
A clause requiring the tenant to operate the business personally for the last three years of the lease term effectively prevents any assignment during that period and is therefore a prohibited absolute ban rather than a permissible restriction (Cass. 3e Civ. 23-7-1986). A clause absolutely prohibiting the nantissement (pledge) of the lease right — without even allowing for possible authorisation — has been treated as a general ban on cession equivalent in effect to the prohibited prohibition. A clause that purports to allow rent revision at the time of any assignment is void — not under Article L 145-16, but under Article L 145-15, which prohibits clauses that circumvent the statutory rent review regime. Using the assignment event as a trigger for an out-of-cycle rent increase is an attempt to impose a non-statutory adjustment mechanism, and courts have consistently struck these clauses down.
Whether you are a tenant seeking to assign your lease, a landlord assessing a proposed assignee, or a buyer conducting due diligence on a French business acquisition that includes a commercial lease, the restriction and approval framework requires careful legal analysis.
Book a ConsultationThis article is for general information and educational purposes only. It does not constitute legal advice. The legal framework described reflects French law and jurisprudence as at 2025. Always seek qualified legal advice before proceeding with or challenging a lease assignment.
