3 elements
Three essential elements for a valid promise to lease: premises, rent, and duration. Absence of any one element renders the promise void (Cass. 3e civ. 19-10-1983). Duration is required because Art. L 145-4 C. com. prescribes the minimum nine-year commercial lease term.
No retraction
Since Cass. 3e civ. 23-6-2021, the promisor cannot retract a unilateral promise during the option period — retraction does not prevent the formation of the lease. This unified rule now applies whether the promise predates or postdates the 2016 reform (Art. 1124 al. 2 C. civ.).
= The lease
A bilateral promise that already covers all essential terms (premises, rent, duration) is not a preparatory act — it is the lease itself, immediately binding. The tenant may demand possession; the landlord must deliver. The later notarial deed is merely an execution modality.

Types of Promise to Lease a French Commercial Property

French law recognises two categories of promise to lease commercial premises. In a unilateral promise (promesse unilatérale de bail), only the promisor is bound; the beneficiary retains a free right of option to accept or decline (C. civ. Art. 1124 al. 1). In a bilateral promise (promesse synallagmatique de bail), both parties commit reciprocally. The bilateral promise requires careful analysis because, if it already contains all the essential terms of the lease, it may constitute the lease itself — with immediate binding force — rather than a preparatory act.

The Unilateral Promise to Lease

Three Essential Elements and Validity

A unilateral promise to lease is only binding on the promisor if it already contains the three essential elements of the intended lease: the premises, the rent, and the duration (C. civ. Art. 1124 al. 1 ; Cass. 3e civ. 19-10-1983 n° 1162). The requirement to specify duration follows from Art. L 145-4 of the Commercial Code, which prescribes the minimum nine-year commercial lease term (Cass. 3e civ. 5-12-2001 n° 1726). Premises must be precisely identified. The rent must be real, genuine, and either determined or determinable (C. civ. Art. 1163 al. 2). These validity requirements are assessed at the date of the promise — not at the date of option exercise — since the promisor is bound from the moment the promise is concluded (Cass. 3e civ. 21-11-2024 n° 21-12.661).

A unilateral promise to lease is a consensual contract requiring no particular form (C. civ. Art. 1124): it does not fall within Art. 1589-2 of the Civil Code (which requires notarial or registered private deeds for sale promises only). A promise over a lease of more than twelve years need not be published at the land registry to be effective between the parties, since it confers only a personal right on the beneficiary (Cass. 1e civ. 22-3-1966 n° 64-10.751).

Accepting the Promise vs. Exercising the Option

The promise, though unilateral in its obligations, is a contract: it only becomes binding once accepted by the beneficiary. Accepting the promise binds only the promisor and opens the option period; exercising the option is what forms the lease and binds both parties. These are two entirely distinct acts. Acceptance may be express or tacit, but it cannot be inferred from the mere fact that the beneficiary collected the document evidencing the promise (Cass. com. 7-6-1979 n° 77-13.016).

The promise may contain a substitution clause allowing the beneficiary, once they have accepted, to designate a third party in their place. This operates as an assignment of contract (C. civ. Art. 1216 al. 1): it requires the promisor's prior consent, must be notified to the promisor or acknowledged by them, and must be in writing on pain of nullity (Art. 1216 al. 3).

Exercising the Option: Formalities and Timing

If the promise specifies a particular form for option exercise (recorded delivery letter, extrajudicial notification, notarial restatement), a non-compliant exercise is without effect (Cass. 3e civ. 7-1-1987 n° 85-14.930) — unless the promisor has waived the formality. Where the promise specifies no form, the beneficiary may exercise freely: even an option communicated orally through the promisor's notary has been held valid (Cass. 3e civ. 19-12-2012 n° 08-14.225). The option must be exercised at the address stated in the promise; notification to that address is opposable to the promisor even after a change of address — unless they specifically informed the beneficiary of the new address (Cass. 3e civ. 4-7-1990 n° 89-10.249).

Where the promise stipulates a deadline, the option must be exercised before it expires. Where no deadline is stipulated, the beneficiary may exercise the option for five years — the period of the personal claim prescription (C. civ. Art. 2224). Once the option is exercised, the lease is formed and the promise becomes a bilateral obligation binding both parties definitively. All remedies for non-performance are available: withholding performance, specific enforcement, judicial termination, and damages — and may be combined (C. civ. Art. 1217).

Can a Promisor Retract a French Commercial Lease Promise?

The 2021 Reversal: No Retraction During the Option Period

Art. 1124 al. 2 of the Civil Code (introduced by Ordonnance 2016-131) provides that a promisor's retraction during the option period does not prevent the formation of the promised contract. The beneficiary may exercise the option despite the retraction and pursue specific enforcement of the lease. Before the 2016 reform, the Cour de cassation had held that a promisor's retraction before option exercise merely precluded specific enforcement, leaving the beneficiary to damages only (Cass. 3e civ. 15-12-1993 n° 91-10.199). In a major 2021 reversal, the third chamber overturned this and held that a unilateral promise contains a definitive and irrevocable commitment by the promisor — retraction does not prevent the formation of the lease (Cass. 3e civ. 23-6-2021 n° 20-17.554 ; Cass. 3e civ. 20-10-2021 n° 20-18.514 ; Cass. 3e civ. 21-11-2024 n° 21-12.661). The result is a unified rule for pre- and post-2016 promises.

The promisor may retain a contractual right of retraction only through a clause de dédit (withdrawal clause). Such a clause may be free or subject to a payment; the payment is not a penalty clause and cannot be judicially reduced (Cass. com. 14-10-1997 n° 2016 ; Cass. 3e civ. 15-2-2006 n° 231).

Lease Granted to a Third Party in Breach of the Promise

Where the promisor grants the lease to a third party in breach of the promise, the beneficiary may obtain annulment of that competing lease — provided the third party had knowledge of the promise (C. civ. Art. 1124 al. 3, in force since 1 October 2016). Mere knowledge suffices; the beneficiary need not prove fraud. The nullity is relative — only the promise beneficiary may invoke it (Art. 1181 al. 1). Before 1 October 2016, annulment required proof of fraudulent collusion between the promisor and the third party (Cass. 3e civ. 10-11-1982 n° 81-13.408).

Immobilisation Indemnity

Where the beneficiary does not exercise the option and the promise provides for an indemnité d'immobilisation payable by the beneficiary to the promisor, this payment compensates the exclusivity granted. It is not a penalty clause and courts may not reduce it (Cass. 3e civ. 5-12-1984 n° 83-12.895). It differs from a clause de dédit: the latter allows a party to withdraw from a binding commitment; the immobilisation indemnity compensates for an exclusivity period the beneficiary was never obliged to use. The indemnity remains with the promisor only if non-realisation of the promise is attributable to the beneficiary (Cass. 3e civ. 15-12-2010 n° 09-15.211).

The Bilateral Promise to Lease: When It Is Already the Lease

When both parties have committed reciprocally and their agreement already covers all three essential terms (premises, rent, duration), the bilateral promise constitutes the commercial lease itself — not a preparatory act separate from it. The lease is formed and binding from the date of the promise: the landlord must allow the tenant to take possession; the tenant must pay rent (Cass. req. 21-3-1921 ; Cass. 3e civ. 28-5-1997 n° 95-17.953). A bilateral promise under a suspensive condition does not defer the formation of the lease — it defers only execution pending the condition (C. civ. Arts. 1304 and 1304-6).

Parties may depart from consensualism and make formation conditional on a further act — typically notarial execution. If the parties have genuinely made that subsequent act a constitutive element of their consent, the bilateral promise is an autonomous avant-contrat and the lease is not yet formed. The courts identify such intent where the promise expressly provides that it will lapse if not restated in notarial form within a fixed period (Cass. 3e civ. 18-2-2009 n° 08-10.677 ; Cass. 3e civ. 9-7-2014 n° 13-12.470). Absent such express provision, the promise constitutes the lease. Where essential terms remain open ("[under charges and conditions to be fixed]"), the promise is equally merely preparatory (Cass. 3e civ. 10-5-1977 n° 75-12.020). Where a private bilateral promise is followed by a notarial restatement, there is no hierarchy: in case of inconsistency, the private writing governs (Cass. com. 23-2-1999 n° 422).

Bilateral Promise = Lease Already
  • All essential terms agreed: premises, rent, duration
  • No condition making notarial form a prerequisite
  • Immediate binding force; tenant may demand possession
  • Later notarial deed is merely an execution modality
  • In case of discordance: private writing prevails
Bilateral Promise Not Yet a Lease
  • Promise expressly lapses if not restated in notarial form within a period
  • Essential terms remain open (charges, conditions to be fixed)
  • Parties made restatement a constitutive element of consent
  • Both parties have a right to specific enforcement of the avant-contrat
  • If condition fails at the notarial date, the promise lapses

The Promise of Renewal in a French Commercial Lease

A landlord may, in the lease itself or in an avenant, commit to renewing the lease on expiry. Such a clause is valid provided it does not create a perpetual lease, which is prohibited by Art. 1210 of the Civil Code (Cass. 3e civ. 19-2-1992 n° 90-16.148). A clause promising one automatic renewal of nine years on expiry of the original term (referring only to that expiry, not to each renewal) is valid (CA Toulouse 12-4-2011 n° 10/00392).

By committing to renewal, the landlord waives their statutory right under Art. L 145-14 of the Commercial Code to refuse renewal in exchange for an eviction indemnity (Cass. 3e civ. 29-10-1970 n° 69-11.287). Where the renewal clause is automatic — providing no mechanism for refusal — the landlord also waives the right to refuse for serious and legitimate grounds under Art. L 145-17, since they cannot serve a congé where renewal is automatic (CA Paris 27-9-2006 n° 05/10868 ; Cass. 3e civ. 1-10-2008 n° 07-16.435). The landlord's only recourse in such a situation is to pursue judicial or clause-based termination of the running lease.

Renewed Rent and Implementation

Parties may fix the renewed rent in the promise itself by any agreed method: at the same level, at market value, or determined by experts (Cass. 3e civ. 10-3-2004 n° 295). A promise of renewal that is silent on the renewed rent does not waive the right to have it judicially fixed: the landlord retains the right to seek a judicial determination (Cass. 3e civ. 23-5-2012 n° 11-12.792 ; Cass. 3e civ. 12-12-2012 n° 11-20.727). A landlord who has committed to renewal is dispensed from serving a congé with offer of renewal (Cass. 3e civ. 27-10-2004 n° 03-15.769): the renewal clause derogates from the statutory notice requirements, which are not ordre public.

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Drafting Tip: The Promise of Renewal

Where the parties intend the renewal to be automatic and irrevocable (waiving all post-renewal retraction rights), the clause must say so expressly: "the lease will be automatically renewed" without reference to any right of refusal. Where the intent is to waive only the eviction-indemnity refusal right but preserve the rent revision mechanism, the clause must reserve the right to fix the renewed rent while committing to renewal. Silence on rent does not waive the rent-fixing right, but the mechanism for invoking it must be addressed. Imprecision in renewal clauses has generated substantial litigation.

French Commercial Lease Promises: The Essentials
Three essential elements required for a valid promise: premises, rent, and duration. Absence of any one element renders the promise void. Validity requirements assessed at the date of the promise — not at the date of option exercise (Cass. 3e civ. 21-11-2024).
No formality required for validity; the promise of lease does not fall under Art. 1589-2 C. civ. (sale promises only). Promisor's consent and capacity assessed at the promise date; beneficiary's only at option exercise.
Accepting the promise ≠ exercising the option. Accepting the promise fixes the preparatory contract and binds only the promisor; exercising the option forms the lease and binds both parties. Substitution clause = assignment of contract requiring written form, notice, and promisor's consent (Art. 1216).
Promisor cannot retract during the option period — the 2021 Cour de cassation reversal makes retraction ineffective for all promises, whatever their date (Cass. 3e civ. 23-6-2021). A contractual clause de dédit is valid; the payment is not reducible as a penalty clause.
Lease granted to a third party in breach of the promise is voidable if the third party knew of the promise (Art. 1124 al. 3, since 1 October 2016) — mere knowledge suffices, no need to prove fraud. The immobilisation indemnity compensates exclusivity and is not reducible as a penalty clause (Cass. 3e civ. 5-12-1984).
Bilateral promise on all essential terms = the lease itself, immediately binding (Cass. 3e civ. 28-5-1997). The lease is only a preparatory act where parties expressly made notarial restatement a constitutive condition, or where essential terms remain open. Private writing prevails over later notarial deed in case of inconsistency (Cass. com. 23-2-1999).
Promise of renewal: valid if not perpetual (Art. 1210 C. civ.); waives eviction-indemnity refusal right (Art. L 145-14); if automatic, waives refusal for serious/legitimate grounds too. Silence on renewed rent does not waive the right to have it judicially fixed (Cass. 3e civ. 12-12-2012). Landlord bound by renewal promise need not serve a congé (Cass. 3e civ. 27-10-2004).
Negotiating or Enforcing a French Commercial Lease Promise?

Whether you are a landlord who has promised a lease or a tenant seeking to enforce one, the technical rules governing validity, retraction, and renewal are critical — and imprecision in drafting has generated substantial litigation.

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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 relying on this content in any transaction.