Court of Cassation Ruling on Force Majeure in Commercial Leases

Extract

[...] This qualification of the counterpart shows that the Court adopts a strict and coherent conception of the commercial lease. But to fully measure the scope of this solution, it is necessary to analyze its inscription in the post-jurisprudence.-Covid and the way it now structures the theory of obligations. This is the subject of the second part (II). II. The scope of the solution in the post-jurisprudence.-Covid and the theory of obligations The solution retained by the Court of Cassation on 30 June 2022 is not only a punctual response to a dispute arising from the health crisis. [...]

[...] The confirmation by the Court of Cassation of the absence of force majeure in commercial leases To understand the scope of the June ruling, it is first necessary to analyze how the Court of Cassation applies the force majeure criteria to commercial leases. This first step leads to studying the distinction made between impossibility of execution and impossibility of benefiting from the service before examining the qualification retained by the Court regarding the counterparty due by the landlord A. The distinction between impossibility of execution and impossibility of benefiting from the service The June ruling is set in an unprecedented context: that of administrative closures imposed during the health crisis. [...]

[...] Thus, the judgment of 30 June 2022 is inscribed in a post--Covid coherent, based on contractual stability and objective risk distribution. It confirms that force majeure cannot be invoked to suspend the payment of commercial rents. This inscription in the post--Covid shows that the Court adopts a firm and coherent position. But to fully grasp the scope of this solution, we must analyze the theoretical implications of this solution on the notion of counterparty and on force majeure. This is the object of the second sub--part B. [...]

[...] The Court thus adopts a strict and classical conception of force majeure. It refuses to extend the notion to situations where the obligation can be executed but loses its economic utility. This position protects the stability of the commercial lease, a contract based on the provision of a premises, regardless of the activity exercised. This solution reveals the normative scope of force majeure: it does not aim to correct economic imbalances, but to sanction objective impossibilities. The Court refuses to transform force majeure into an instrument of economic equity. [...]

[...] This analysis protects the stability of the contract by preventing the counterparty from becoming a subjective notion dependent on the profitability of the tenant's activity. This solution fits into a broader logic: that of preserving the coherence of force majeure. The Court refuses to extend force majeure to situations where the obligation can be executed but loses its economic interest. Such an extension would have transformed force majeure into an economic adjustment mechanism, contrary to its traditional function. Force majeure aims at impossibility objective to execute, not the loss of interest subjective for the performance. [...]