Does the Outgoing Tenant Remain Liable After Assigning?
When a lease is assigned, the assignee assumes primary responsibility for rent payments and all other lease obligations from the date of assignment. Whether the outgoing tenant continues to bear any residual liability for obligations arising after the assignment depends on two separate legal frameworks that now coexist in tension: the contractual solidarity clause in the lease itself, and the default rule introduced by the 2016 reform of the Civil Code for contract assignments generally. The answer differs materially depending on when the lease was concluded and what the assignment deed says.
Where There Is No Solidarity Clause
Under the pre-2016 case law, the position was clear: absent a solidarity clause, the outgoing tenant was discharged from all obligations arising after the assignment became effective against the landlord (Cass. 3e Civ. 12-7-1988; 15-1-1992). Once the assignment was properly notified or acknowledged, the outgoing tenant owed nothing to the landlord in respect of future rent, repairs, or other lease obligations incurred by the assignee.
The 2016 reform introduced a general rule for contract assignments in Article 1216-1 of the Civil Code: the assignment of a contract releases the assignor for the future only if the other contracting party — here the landlord — has expressly consented to the assignor's release. In the absence of such express release, the assignor remains jointly and severally liable for the performance of the contract. If Article 1216-1 applies to commercial lease assignments, the pre-2016 position is reversed for leases concluded from 1 October 2016: the outgoing tenant would remain jointly and severally liable for the assignee's obligations unless the landlord expressly releases them.
Whether Article 1216-1 of the Civil Code applies to commercial lease assignments is genuinely uncertain. One argument says yes: the assignment of a commercial lease is a contract assignment and the general rule applies. The opposing argument says that the commercial lease statute already treats solidarity as a mere option (not the default), so the landlord's silence on release should be treated as tacit consent to release — which is incompatible with Article 1216-1's requirement of express consent. The answer is unsettled. The parties should address the question explicitly in every assignment deed concluded from October 2016: either include a solidarity clause or include an express release of the assignor by the landlord.
The Solidarity Clause and the 3-Year Cap
Many commercial leases include a solidarity clause under which the outgoing tenant expressly commits to guarantee the assignee's performance of lease obligations — most commonly rent payment. Under the loi Pinel of 18 June 2014 (applicable to leases concluded or renewed from 5 November 2014), the maximum duration of this solidarity guarantee is capped at three years from the date of assignment. Any clause extending beyond three years is deemed unwritten for the excess period. The cap is mandatory and cannot be contractually extended by the parties.
The Outgoing Tenant's Guarantees to the Assignee
The outgoing tenant's post-assignment obligations run not only towards the landlord but also towards the assignee. The outgoing tenant is bound by two guarantees: the guarantee of existence (C. civ. Art. 1693) — warrantying that the lease was valid and subsisting at the time of assignment, so that if it later emerges the lease was invalid or had been terminated before assignment the assignee can claim against the outgoing tenant; and the guarantee against eviction (C. civ. Art. 1630) — obliging the outgoing tenant to defend and compensate the assignee if the assignee is evicted from the premises as a result of a cause attributable to the outgoing tenant.
The most common application of the eviction guarantee is where the landlord obtains lease termination on the ground that the assignment itself was irregular — for example because the outgoing tenant failed to comply with a landlord participation clause. In that case the eviction is the direct result of the outgoing tenant's breach, and the outgoing tenant must compensate the assignee for the full consequences of that eviction, including any damages (Cass. 3e Civ. 24-6-1998 n° 96-19.042). The guarantee against eviction cannot be excluded where the assignee was unaware of the circumstances creating the eviction risk. Where the assignee subsequently sells the lease to a further assignee, the original outgoing tenant's eviction guarantee benefits the further assignee as well — the guarantee runs with the thing assigned, not merely in favour of the immediate contractual counterparty (Cass. 3e Civ. 4-7-2024 n° 23-13.822).
Every commercial lease assignment deed concluded from 1 October 2016 should address two questions explicitly. First, if no solidarity clause is intended: include a clause providing that the landlord expressly releases the assignor from all future obligations arising after the assignment date (Art. 1216-1 C. civ.). Second, if a solidarity clause is included: ensure the duration does not exceed three years from the assignment date (Pinel cap) and confirm that the clause covers rent, charges, and lease restoration obligations. Failure to address the Art. 1216-1 uncertainty in the deed leaves the outgoing tenant potentially exposed to ongoing liability that the parties may not have intended.
The post-assignment liability of the outgoing tenant must be addressed explicitly in every assignment deed from 2016. Our guides and legal contacts are here to help you structure the transaction correctly.
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 as at 2025. Always seek qualified legal advice before any lease assignment transaction.
