1 month
Mandatory minimum period after bailiff's demand before forfeiture clause can take effect — any shorter clause is deemed unwritten (Art. L. 145-41)
Bailiff only
Demand must be served by commissaire de justice — registered letter is insufficient however clearly it notifies the breach (Cass. 3e civ., 21 Dec. 2017)
2 years max
Maximum additional time the court can grant to the tenant to remedy the breach and defeat the clause (C. civ. Art. 1244-1)
Retroactive effect
Termination takes effect from expiry of the 1-month demand period — not from the date of the court order

How the Forfeiture Clause Works

A forfeiture clause (clause résolutoire) inserted in a commercial lease provides that the lease will be terminated automatically if the tenant commits a specified breach. Under Article L. 145-41 of the Code de commerce, any such clause can only take effect one month after a formal bailiff's demand (commandement) has been served and has gone without adequate response. This one-month minimum is mandatory public order: any clause providing a shorter period is not void but is treated as unwritten (Art. L. 145-15).

The forfeiture clause differs fundamentally from judicial termination. In a judicial termination claim, the court assesses the gravity of the breach and decides whether it justifies the outcome. In a forfeiture clause proceeding, the court has no such discretion — it merely verifies that the clause was triggered properly. If it was, termination is automatic. This makes the procedure both faster and more powerful from the landlord's perspective, but also more vulnerable to procedural error.

Substantive Conditions: What the Clause Can Cover

The clause can only be triggered for breaches of obligations expressly stated in the lease and expressly covered by the clause. Both requirements are interpreted strictly.

The obligation breached must appear explicitly in the lease: no forfeiture for failure to operate if the lease contains no operation obligation (Cass. 3e civ., 19 May 2004); no forfeiture for irregular subletting without a prohibition. The clause itself must expressly cover the obligation: a rent clause cannot trigger on an occupation indemnity (Cass. 3e civ., 24 Feb. 1999), on demand notice costs (Cass. 3e civ., 24 May 2000), or on late payment interest (Cass. 3e civ., 13 Dec. 2006).

The clause must also be invoked in good faith. Bad faith has been found where: the demand was served during the tenant's absence; works demanded could not reasonably be completed in a month; the landlord was the source of the problem (e.g. water infiltration); and the demand was designed to recover the premises rather than remedy a genuine breach. A landlord in breach of their own delivery obligation cannot invoke the clause (Cass. 3e civ., 1 December 2016).

The Demand Notice: Every Detail Counts

Service of a bailiff's demand is a mandatory formal prerequisite. A registered letter does not suffice (Cass. 3e civ., 21 December 2017). The notice must satisfy all four of the following requirements — a failure on any one renders the demand ineffective.

Demand Notice Requirements (Commandement)
1
Service on the right person at the right address
Served by bailiff on the tenant themselves (not a deceased person, not just one co-tenant where there are several). Served at the tenant's address or registered office for a company. Each co-tenant must be served individually.
2
Precise and unambiguous statement of the breach
The specific breach being invoked, the specific lease clause engaged, and for a payment demand: a detailed schedule from the last date the tenant was current, itemising principal, charges, VAT, periods, and payments received. Where the demand overstates the amount, it is valid for the undisputed portion.
3
Express mention of the one-month remedy period
The notice must expressly mention the one-month period within which the tenant may remedy the breach — on pain of nullity (Cass. 3e civ., 6 March 1996). The period runs from the date of service, not receipt.
4
Single deadline only
The notice must contain only one deadline. A notice with several competing deadlines is ambiguous and therefore ineffective (Cass. 3e civ., 3 Oct. 2007). Each separate breach requires its own separate demand notice.
⚠️
Warning — Never Serve During the Annual Closure Period

Serving a forfeiture clause demand during the tenant's annual closure period creates a real risk of a bad faith finding. The one-month remedy period starts from service, so demanding work that cannot practically be started or completed (because firms are on holiday or buildings are closed) in August is particularly vulnerable. Courts have upheld bad faith findings on exactly this basis.

Suspending the Forfeiture Clause: Landlord vs Tenant Positions

Landlord's position
Seeking Declaration of the Clause
Apply to the juge des référés to declare the clause operative. The court verifies the procedure only — it cannot assess the gravity of the breach (Cass. 3e civ., 5 Oct. 2017) or substitute a judicial termination (Cass. 3e civ., 8 March 2018). Must ask the court to declare the clause operative explicitly, not merely seek termination.

The interim order is provisionally enforceable immediately and remains so on appeal — but it is not a final judgment and can be reversed at the merits stage.

Termination takes effect retroactively from expiry of the 1-month demand period, not from the court order date.
Tenant's remedy
Suspension and Additional Time (Art. L. 145-41 al. 2)
The tenant has a statutory right to ask the court for additional time and, in doing so, to suspend the forfeiture clause. Must request both the additional time and the suspension explicitly — court cannot grant them of its own motion (Cass. 3e civ., 27 March 1991). Can be requested for the first time on appeal (Cass. 3e civ., 11 March 2021).

Court may grant up to 2 years (Art. 1244-1 C. civ.), conditional on paying the overdue amounts and maintaining current rent payments.

Retroactive delay: where the tenant has paid after the 1-month period but before the hearing, the court can retroactively acknowledge payment was made within the period — extinguishing the clause (Cass. 3e civ., 9 Jan. 1991).

Critical: if the tenant fails to comply with the court's conditions even by a few days, the clause is definitively acquired — no further delays possible (Cass. 3e civ., 11 March 2021).

Registered Creditors: The Step Landlords Miss

Article L. 143-2 of the Code de commerce requires the landlord to notify all registered creditors (holders of pledges or nantissements over the fonds de commerce) of any termination claim — whether judicial, forfeiture clause, or mutual. This notification must be served at the address elected by each creditor in their registration entry. The court ruling can only be delivered one month after the notification.

The notification must be of the claim (the assignation or pleadings), not just the demand notice. Failure to notify is not a procedural defect in the termination itself, but makes the termination unenforceable against the unnotified creditor — who can then challenge the order and potentially have it reversed in relation to all parties including the tenant. The creditor has one month from notification to cure the breach themselves. Only registered creditors (pledge and nantissement holders) need to be notified; credit lessors and reservation-of-title holders do not.

Forfeiture Clause Checklist
  • Substantive scope (strictly interpreted): confirm both the underlying obligation and the forfeiture clause expressly cover the breach being relied upon — no forfeiture for obligations not stated in the lease or not specified in the clause. Payment clause does not cover occupation indemnity, demand costs, or late payment interest.
  • Demand notice — four requirements: (1) bailiff only, served on each co-tenant individually at the correct address; (2) precise statement of breach + specific clause + detailed payment schedule; (3) express mention of one-month remedy period (mandatory on pain of nullity); (4) single deadline only — multiple deadlines = ambiguous = ineffective.
  • Good faith (landlord): do not invoke the clause if you are in breach of your own delivery obligation (Cass. 3e civ., 1 Dec. 2016); do not serve in August or during annual closure; do not serve where demanded works cannot reasonably be completed in a month.
  • Suspension (tenant — Art. L. 145-41 al. 2): must request both additional time and suspension explicitly. Court can grant up to 2 years. Retroactive delay mechanism: payment after 1-month period but before hearing can still defeat the clause. Once clause is definitively acquired, no further delays — even failure by a few days is fatal (Cass. 3e civ., 11 March 2021).
  • Registered creditors (Art. L. 143-2): notify all holders of pledges/nantissements of the termination claim; court ruling cannot be delivered until 1 month after notification; failure to notify makes termination unenforceable against that creditor. Lift and verify all registrations before commencing proceedings.
Serving or Responding to a Forfeiture Clause Demand?

The forfeiture clause procedure is fast-moving, technically demanding, and unforgiving of error on both sides. We advise landlords on valid demands and registered creditor notifications, and tenants on suspension applications and the retroactive delay mechanism.

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This article is for general information and educational purposes only. It does not constitute legal advice and does not create a lawyer-client relationship. Laws and regulations may have changed since publication. Always seek qualified French legal advice on forfeiture clause matters in a French commercial lease.