Court of Cassation, 3rd Civil Chamber, 18 September 2025, Appeal No. 23-24.005

The tenant in a commercial lease may suspend payment of rent as soon as the premises become unfit for use, without prior formal notice.

The facts: commercial premises affected by water infiltration

The company Le Bourgeon had leased premises to Ms [D] for 23 months from 15 November 2011.

At the end of the lease, the tenant remained in the premises without paying the ‘key money’ provided for in the event of a new lease being concluded.

Sued for eviction and payment, Ms [D] raised an exception of non-performance due to defects (water infiltration observed in August 2016) and claimed damages for the lessor’s failure to fulfil its obligation to deliver the premises.

A very lengthy procedure followed, as an initial ruling was handed down by the Court of Cassation. The case was then referred to the Fort de France Court of Appeal.

The decision of the Court of Appeal

The Fort-de-France Court of Appeal (21 March 2023) rejected the claim for compensation on the grounds that the insurer had offered compensation of €30,863.66, which was assumed to have been accepted by the tenant, and ordered her to pay the rent for 2015–2016, ruling that she could not raise the defence of non-performance before a formal notice was sent in November 2016.

Cassation: misrepresentation and reminder of the rules governing the defence of non-performance

The Court of Cassation censured this reasoning on two points:

1 – Misinterpretation of a document:

‘Exhibit No. 9 (…) was a letter from the expert appointed by the insurer proposing a settlement of the claim before the report was sent to the insurer. By considering it to be an accepted offer of compensation, the Court of Appeal misrepresented its clear and precise terms.’

2 – Exception of non-performance without formal notice:

‘The lessee may invoke an exception of non-performance (…) as soon as the premises are unfit for their intended use, without being required to give prior formal notice.’

Analysis

The decision is particularly instructive with regard to the second ground for cassation.

In commercial leases, the exception of non-performance applies automatically as soon as the premises become unsuitable, without any prior formalities, thus effectively protecting the lessee against breaches by the lessor.

A judge cannot require prior formal notice to authorise an exception of non-performance that is not required by law.

This case will therefore continue before a Court of Appeal, where it may finally be resolved.

By Olivier Vibert,

Lawyer at the Paris Bar