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Request for delay and suspension: termination of the commercial lease
According to Article L. 145-41 of the Commercial Code , the holder of a commercial lease has the right to request delays and the suspension of the effects of the resolutory clause, even after the expiry of the period of one month from from the order , as long as the termination of the lease has not been pronounced by a decision having the authority of res judicata. This provision provides important protections to commercial tenants in the event of a lease termination.
Nullity of summons: violation of the commercial code and the code of civil procedure
In one specific case, a landlord submitted an order to a tenant company on October 27, 2009, invoking the termination clause to demand payment of the rent due. The tenant, in response, filed a summons opposing the order on December 8, 2009. The lessor argued that the summons was void, alleging that the tenant’s manager died on November 24, 2009.
The judgment rendered in this case ruled in favor of the nullity of the summons, invoking the substantive irregularity affecting the summons against the order for payment. The court held that such an irregularity could not be rectified once the appeal period had expired. It concluded that given that the order was issued on October 27, 2009 and that the one-month period to oppose it had already expired, no subsequent regularization could be validly carried out.
This decision of the Court of Appeal, however, violates Article L. 145-41 of the Commercial Code, as well as Article 121 of the Code of Civil Procedure. The court did not recognize the rights granted to commercial tenants to request delays and suspend the effects of the termination clause, even if the period for opposition to the order had expired.
Grégory Damy, a lawyer specializing in business law in Nice, insists on the importance of respecting the provisions of the Commercial Code and the Code of Civil Procedure to protect the rights of commercial tenants. This case highlights the need for proper interpretation and application of the law to ensure fairness and justice in lease termination disputes.
