5 years
The ordinary prescription period for a nullity action — running from the day the claimant knew or ought to have known the cause of nullity (Art. 2224 C. civ.). Not the 2-year commercial lease period of Art. L 145-60, which applies only to statute-based actions.
Perpetual
The exception of nullity — raising nullity as a defence — is imprescriptible, but only as long as the lease has received no performance at all (Art. 1185 C. civ.). Any commencement of performance extinguishes this perpetual right immediately.
Retroactive
Annulment causes retroactive extinction: the lease is treated as though it never existed. The landlord must return all rents received; the tenant owes an occupation indemnity assessed on the actual value of the enjoyment provided — not the contractual rent.

Grounds for Nullity of a French Commercial Lease

A commercial lease is null if it fails to meet the conditions required for its validity (C. civ. Art. 1178 al. 1). The causes of nullity span the full lifecycle of the lease's formation: absence of a required element (premises, rent, duration); incapacity or lack of authority of a party; a consent defect (error, fraud, duress); an unlawful or impossible object; and illegality of the cause or content of the lease.

What Happens When Only a Clause Is Null

The annulment of a single clause does not automatically annul the whole lease. The lease as a whole is only null if the impugned clause was a determining element of the parties' agreement, or of one of them (C. civ. Art. 1184 al. 1 ; Cass. 3e civ. 24-6-1971 n° 70-11.730). Where the clause was not determinative, the lease continues, reduced of the invalid clause. A clause that is merely réputée non écrite (struck under Art. L 145-15 or L 145-16 C. com.) likewise leaves the lease standing (Art. 1184 al. 2).

Nullity: Absolute or Relative?

French law since 2016 determines the character of a nullity by reference to the interest protected by the violated rule: absolute nullity where the rule safeguards the general interest; relative nullity where the rule protects a private interest only (C. civ. Art. 1179 ; Cass. com. 22-3-2016 n° 14-14.218). The distinction no longer turns on whether an essential element of the contract was absent, but solely on the nature of the interest protected. In practice, consent defects and capacity defects give rise to relative nullity, since the rules on consent and capacity protect individual interests.

Absolute Nullity — General Interest
  • May be raised by any person with a legitimate interest
  • May be raised by the ministère public
  • Cannot be confirmed
  • Prescription: 5 years (Art. 2224 C. civ.)
  • Applies where the violated rule protects the general interest (illegality, ordre public)
Relative Nullity — Private Interest
  • May only be raised by the protected party (Art. 1181 al. 1)
  • Cannot be raised by the other party or by third parties
  • Can be confirmed by the protected party
  • Prescription: 5 years (Art. 2224 C. civ.)
  • Covers: consent defects (Art. 1131), capacity defects, other private-interest rules

Summoning a Party to Confirm or Act: The Art. 1183 Mechanism

Since 1 October 2016, a party may serve a written demand on the party entitled to invoke a nullity, requiring them either to confirm the lease or to bring a nullity action within six months on pain of foreclosure (C. civ. Art. 1183 al. 1). The demand must state that failure to act within the six-month period will result in the lease being deemed confirmed. The cause of the nullity must have ceased before this demand can be used. This procedure is only available for relative nullity: it cannot lead to a confirmation of an absolutely null lease.

Confirming a Voidable French Commercial Lease

A lease affected by relative nullity may be confirmed by the party entitled to invoke it (C. civ. Arts. 1181 al. 2 and 1182 al. 1). Confirmation is not presumed. It may be express or tacit, provided it is unambiguous. Confirmation arises from: an express act identifying the nature of the nullity being waived, the substance of the obligation, and the vice affecting the lease (Art. 1182 al. 2 and 3); the failure to respond to a summation under Art. 1183 within six months; and voluntary performance of the lease in knowledge of its nullity (Cass. com. 8-1-2002 n° 98-16.037 ; Cass. com. 21-4-2022 n° 20-16.295 ; Cass. 3e civ. 23-11-2023 n° 22-21.463).

Confirmation requires, in all cases, that the cause of nullity has already arisen and that the confirming party knows of it. For duress, confirmation is only possible after the duress has ceased. For error and fraud, only after the victim has discovered the error or fraud (Cass. com. 12-1-2010 n° 08-21.247). Confirmation definitively bars the confirming party from challenging the lease either by action or by exception. Between the parties, confirmation is retroactive: the lease is treated as having been valid from the outset. Where several parties share the right to invoke the nullity, one party's confirmation does not prevent the others from acting (Art. 1181 al. 3).

Who Can Seek Nullity of a French Commercial Lease

In the case of absolute nullity, any person with a legitimate interest may bring the action, as may the ministère public (Art. 1180 al. 1). In the case of relative nullity, only the party the law intends to protect may bring the action (Art. 1181 al. 1). The other contracting party has no standing. An acquirer of the leased property cannot bring a nullity action on account of fraud suffered by the previous owner (Cass. 3e civ. 18-10-2005 n° 1117). The right passes to the victim's universal heirs after death (Cass. 1e civ. 4-7-1995 n° 93-15.005).

Prescription of the Nullity Action

The nullity action prescribes in five years from the day the claimant knew or ought to have known the cause of nullity (C. civ. Art. 2224 ; C. com. Art. L 110-4). The starting point varies by type of defect: for consent defects, the period runs from discovery of the defect (or from when duress ceased); for capacity defects, from the date specified by Art. 1152. The commercial lease statute's own two-year prescription (Art. L 145-60) applies only to statute-based actions, not to nullity actions under general law.

The Perpetual Exception of Nullity: A Critical Trap

The expiry of the prescription period for the nullity action does not destroy the right to raise nullity as a defence. The exception of nullity — opposing nullity as a defence to an action seeking enforcement of the lease — is imprescriptible provided the lease has received no performance (C. civ. Art. 1185 ; Cass. com. 10-7-1978 ; Cass. 3e civ. 25-3-1998).

This perpetual right extinguishes the moment the lease has received any performance at all: even a commencement of performance suffices to neutralise it (Cass. com. 13-5-2014 n° 12-28.013 ; Cass. com. 31-1-2017 n° 14-29.474). The rule applies whether the nullity is absolute or relative (Cass. 1e civ. 24-4-2013 n° 11-27.082 ; Cass. 3e civ. 16-3-2017 n° 16-13.063). Payment of rent by the tenant constitutes performance of the lease and therefore bars the perpetual exception defence once the prescription period has run.

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The Perpetual Exception: A Trap for Both Sides

The imprescriptibility of the nullity exception only applies before the prescription period expires: until then, the action in nullity or a reconventional demand for annulment are both available regardless of whether the lease has been performed. The perpetual exception is only relevant once the action is time-barred. At that point, voluntary performance in full knowledge of the nullity may constitute confirmation, barring the exception as well (Art. 1182 al. 1). An action seeking annulment and restitution of sums already paid is a demande reconventionnelle subject to prescription, not a mere exception (Cass. com. 14-9-2022 n° 21-12.744).

Amicable Annulment and the Long Lease Publication Requirement

The parties may by mutual agreement record the nullity of the lease (C. civ. Art. 1178 al. 1). This mechanism applies whether the nullity is absolute or relative. The agreed annulment produces the same effects as judicial annulment: retroactive extinction, restitutions, and the possibility of a damages claim.

Where the lease is of more than twelve years and therefore subject to publicité foncière, any judicial demand for annulment must also be published at the land registry (Décret 55-22 of 4 January 1955, Art. 28, 4°-c). Failure to publish makes the demand inadmissible, though this fin de non-recevoir may only be raised by the parties, not by the court of its own motion (Cass. 3e civ. 7-11-2001 n° 97-22.231). The defect of non-publication may be remedied until the court rules, by publishing the claim or the judgment containing the initial demand (Cass. 3e civ. 22-6-2017 n° 16-13.651).

Consequences of Annulment: Retroactive Extinction

Annulment of a commercial lease causes its retroactive extinction: the lease is treated as though it never existed (C. civ. Art. 1178 al. 2 ; Cass. 1e civ. 16-7-1998 ; Cass. 3e civ. 2-10-2002). All clauses of the annulled lease lose their force, with immediate effect for both past and future. Where the annulled lease had replaced a previous lease, the previous lease revives and continues by tacit prolongation (Cass. 3e civ. 27-3-2002 n° 00-20.840). Two exceptions: an arbitration clause has autonomous status and survives the annulment (CPC Arts. 1447 and 1506 ; Cass. com. 9-4-2002); as does a jurisdiction clause.

Restitutions Following Annulment

The retroactive annulment obliges the parties to be restored to the position they occupied before the lease was concluded (Art. 1178 al. 3). Restitutions arise automatically from the annulment, even where nullity was declared for illegality (Cass. 3e civ. 25-2-2004 ; Cass. 3e civ. 23-11-2011 ; Cass. 1e civ. 17-2-2021) and regardless of any fault by the party receiving the restitution (Cass. com. 28-6-2023 n° 22-15.676).

Landlord's Obligation: Return of Rent
The landlord must restore all rents and other sums received, including the security deposit. Interest at the statutory rate runs from payment if the landlord was in bad faith (e.g. the author of fraud or duress); otherwise from the date of the nullity demand (Art. 1352-6 and 1352-7 C. civ.). The restitution includes any taxes charged alongside the rent.
Tenant's Obligation: Occupation Indemnity
The tenant cannot return in kind the enjoyment they received, so they pay an occupation indemnity as a substitute (Cass. 3e civ. 10-5-2001 ; Cass. 3e civ. 24-6-2009 ; Cass. 3e civ. 3-11-2021). Exception: where nullity is due to a cause unrelated to the tenant's conduct, no indemnity is owed if the tenant did not benefit from occupation conforming to the contractual purpose (Cass. 3e civ. 3-11-2021 n° 20-16.334).

Calculating the Occupation Indemnity

The indemnity is calculated by reference to the value of the performance actually provided to the tenant, assessed at the date it was provided (Art. 1352-8 C. civ.). It is not automatically equal to the contractual rent: where the premises were partly defective, the indemnity may be set at a fraction of the contracted rent. The indemnity cannot correspond to any contractually fixed occupation indemnity, since all the lease's terms are extinguished by the retroactive annulment (Cass. 3e civ. 30-10-2002 n° 01-01.219). The prescription of the action for payment of the indemnity cannot begin to run before the nullity is pronounced (Cass. 3e civ. 14-6-2018 n° 17-13.422). The indemnity is only owed if the landlord claims it (Cass. com. 4-3-2014 n° 12-19.836).

Damages Alongside Annulment

Independently of the annulment and the resulting restitutions, the injured party may seek damages on the basis of extra-contractual liability (Art. 1178 al. 4; Arts. 1240 and following C. civ.). Two conditions apply: the claimant must be in good faith — the author of fraud that caused the nullity cannot claim damages (Cass. ch. mixte 9-7-2004 n° 02-16.302); and the damages claimed must represent a loss distinct from what is already covered by the annulment and the restitutions (Cass. com. 9-10-2007 n° 05-22.023 ; Cass. com. 12-7-2011 n° 10-19.297). Liability limitation and exclusion clauses in the lease are without effect against tort claims founded on Arts. 1240 and 1241 C. civ. (Cass. 1e civ. 5-7-2017 n° 16-13.407).

Fate of Guarantees and Linked Contracts

Guarantees

Sureties given by third parties to secure the tenant's obligations are automatically transferred to the restitution obligation arising from the annulment, by operation of law (Art. 1352-9 C. civ.). The transfer covers the restitution obligation only, not the damages claim that may accompany it (Cass. com. 12-7-2005 n° 02-13.583).

Linked Contracts: Caducity

The annulment of the commercial lease may render caducous a separate contract entered into by the tenant with a third party, where the lease and the other contract together form a single economic operation and the impossibility of performing the other contract results from the lease's disappearance (Art. 1186 al. 2 C. civ.). Caducity only operates if the contracting party against whom it is invoked knew of the overall operation at the time of contracting (Art. 1186 al. 3). The doctrine has been applied where a commercial lease annulled for the landlord's fraud caused the nullity of the tenant's working capital loans taken specifically for the business to be operated in the leased premises (CA Rennes 9-9-2020 n° 17/03847). By contrast, a franchise contract was held not to form a single operation with a commercial lease concluded five years earlier and capable of performance in other premises (CA Paris 15-5-2019 n° 17/20051).

Nullity of a French Commercial Lease: The Essentials
Annulment of a single clause only brings down the whole lease if that clause was a determining element (Art. 1184 al. 1). Clauses réputées non écrites under Art. L 145-15 or L 145-16 C. com. leave the lease standing (Art. 1184 al. 2).
Absolute nullity protects the general interest — any person with a legitimate interest may act; cannot be confirmed. Relative nullity protects private interest — only the protected party may act; can be confirmed. Both prescribe in 5 years (Art. 2224 C. civ.), not the 2-year Art. L 145-60 period.
The Art. 1183 summation mechanism: one party can force the other to confirm or sue within 6 months, on pain of foreclosure. Only for relative nullity; cause of nullity must have ceased first. Confirmation is also possible by voluntary performance in knowledge of the nullity (Cass. 3e civ. 23-11-2023 n° 22-21.463).
The perpetual exception of nullity survives prescription, but only if the lease has received no performance at all (Art. 1185). Any commencement of performance — including a single rent payment — extinguishes it immediately. An action seeking annulment plus restitution of sums paid is a demande reconventionnelle subject to prescription, not a mere exception (Cass. com. 14-9-2022 n° 21-12.744).
Leases of over 12 years: any nullity demand must be published at the land registry. Failure = inadmissible, but only parties may raise this objection; the defect is regularisable until the court rules. The annulment judgment must itself be published.
Annulment = retroactive extinction of the entire lease (Art. 1178 al. 2). All clauses lose force except: an arbitration clause (CPC Art. 1447) and a jurisdiction clause, both of which survive. Where the annulled lease replaced a previous lease, the previous lease revives.
Landlord must return all rents received; interest at the statutory rate from payment if in bad faith, otherwise from the date of the nullity demand (Arts. 1352-6 and 1352-7 C. civ.). Tenant owes an occupation indemnity assessed on the actual value of the enjoyment received (Art. 1352-8) — not the contractual rent — and only if the landlord claims it.
Damages: available alongside annulment on extra-contractual grounds; claimant must be in good faith; the loss must be distinct from what restitutions already cover. Guarantees transfer automatically to the restitution obligation (Art. 1352-9 C. civ.) — but not to the damages claim.
Caducity of linked contracts: possible where lease and other contract form a single economic operation and the third party knew of the overall operation at the time of contracting (Art. 1186 al. 2 and 3 C. civ.).
Facing a French Commercial Lease Nullity Dispute?

Whether you are seeking to annul a lease, defending against a nullity claim, or assessing the restitution and damages consequences of an annulment, the procedural and substantive rules require precise legal handling.

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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 taking any steps in connection with the nullity of a commercial lease.