Fishing or Fish Farming Lease: The Cour de cassation Decided in 1972

Imagine you are in Amboise, owner of a pond that communicates with the Loire. You lease this body of water to a professional fisherman. But one day, a dispute arises: your tenant claims that the lease falls under the jurisdiction of a tribunal paritaire (competent for agricultural leases), while you argue it is a simple fishing lease, falling under the tribunal d'instance. What is the nature of your contract? The question, which every pond owner asks, found a clear answer in a judgment of the Cour de cassation of 3 May 1972.

This decision, rendered concerning a pond in Corsica, distinguishes the fish farming lease — which requires constant human intervention in the living conditions of the fish — from the fishing and hunting lease, where the lessee merely harvests wild species. The judges considered that if the pond communicates with the sea and the lessee, a skipper-fisherman, only practices modest restocking, it is a fishing lease. The jurisdiction of the tribunal paritaire is then excluded.

For an owner in Loches, this distinction has immediate practical consequences: which court to seize in case of dispute, which legal regime to apply, what obligations rest on the lessee. Let us dissect this old but still relevant case.

The Facts: A Story Like Those That Happen Every Day

In 1948, the owner of an estate and the Biguglia pond in Corsica granted a lease to a family of fishermen. The contract stipulated that the lessees had the right to exploit the leased property "by any means they may pursue," under the direction of the head of the family, a professional skipper-fisherman. The pond, a vast body of brackish water of about 150 hectares, communicates with the sea via a grau (natural channel). It is mainly populated by species from the sea: mullet, sea bass, sea bream, eels. The lessee practiced a modest annual restocking (release of young fish), but the majority of the fish came from the sea.

Years later, a dispute arose between the owner and the lessee. The latter argued that the lease fell under the status of fermage (agricultural lease) and should therefore be examined by the tribunal paritaire des baux ruraux (rural lease court), competent for fish farming leases. The owner, on the other hand, maintained that it was a simple fishing and hunting lease, falling under the tribunal d'instance. The tribunal paritaire, first seized, declared itself competent, but the court of appeal reversed this decision, considering it a fishing lease. The lessee appealed to the Cour de cassation.

The appeal argued that the lease allowed the lessees to "exploit the leased property by any means they may pursue," which would include fish farming. But the Cour de cassation rejected this reasoning. It examined the nature of the pond, its communication with the sea, the origin of the fish, and the modest character of the restocking. It concluded that fish farming requires constant human intervention and control over the living conditions of the fish, which was not the case here.

The Reasoning of the Court — Analysed

The Cour de cassation, in its judgment of 3 May 1972, relied on a precise factual analysis to qualify the contract. It recalled that the nature of the lease depends on the activity actually carried out, not on the terms of the contract. The implicit legal basis is Article 1711 of the Civil Code (which defines a lease as a contract by which one party undertakes to allow the other to enjoy a thing for a period, in exchange for a price), but above all the case law relating to the jurisdiction of the tribunal paritaire.

The judges noted three determining elements:

• Communication with the sea: the pond being connected to the sea, fish enter and leave naturally. The lessee does not control the fish population.
• Nature of the fish: these are marine species (mullet, sea bass, sea bream) that do not reproduce in the pond. The annual restocking is modest and insufficient to characterise farming.
• Professional status of the lessee: a skipper-fisherman, he practices fishing, not aquaculture. His main activity is capture, not farming.

The Court deduced that the lease is a fishing and hunting lease, falling under the jurisdiction of the tribunal d'instance (now tribunal judiciaire), and not the tribunal paritaire des baux ruraux. This is neither a development nor a reversal, but a classic application of the distinction between fishing and farming. The decision confirms that the trial judges have sovereign discretion to assess the facts to qualify the contract.

This reasoning is interesting because it illustrates the judges' method: they do not rely on the words of the contract ("any means"), but on the reality of the operation. An owner who drafts a contract speaking of "farming" would not thereby transform a natural pond into a fish farm if the factual conditions are not met.

What This Changes for You — Practically

For a pond owner in Loches, this decision has immediate practical consequences. If you lease a pond that communicates with a watercourse or the sea, and your lessee is a professional fisherman who merely restocks modestly, the contract will likely be qualified as a fishing lease. This means:

• Court jurisdiction: in case of dispute, you must seize the tribunal judiciaire (formerly tribunal d'instance), and not the tribunal paritaire des baux ruraux. Procedural deadlines and substantive rules differ.
• Legal regime: a fishing lease is not subject to the status of fermage (law of 4 July 1980 on agricultural leases). You can freely set the duration, rent, and termination conditions, without the constraints of agricultural law (notice, renewal, pre-emption).
• Lessee's obligations: the lessee has no obligation to farm according to agronomic rules; he can freely harvest fish, subject to environmental regulations (fishing, protected species).

Example: in Loches, an owner leases a 5-hectare pond to an amateur fisherman for €1,200 per year. If the tenant does not pay, the owner can act before the tribunal judiciaire of Tours, with a simplified procedure (payment injunction) in a few months. In contrast, if the lease were qualified as an agricultural lease, the owner would have to respect a notice period of 18 months and justify a serious reason for termination.

For a lessee, the qualification of a fishing lease is less protective: no automatic renewal right, no rent limitation. If you are a lessee of a pond and invest in restocking or improvements, you have an interest in negotiating a written contract specifying the qualification of fish farming lease, to benefit from the status of fermage.

Four Tips to Avoid This Type of Dispute

• Draft a precise written contract: clearly state the nature of the lease (fishing, hunting, fish farming) and describe the pond, its communication with open waters, the species present, and the lessee's activity. A well-drafted contract avoids 90% of disputes.
• Determine the origin of the fish: if the pond communicates with the sea or a watercourse, and the fish come naturally, the lease will be presumed to be a fishing lease. If you practice massive restocking and regular feeding, have it recorded by a third party (bailiff, expert) to prove farming.
• Consult a specialised lawyer: before signing a lease for a pond, have the criteria analysed by a professional. In Amboise, an owner consulted me after signing an ambiguous contract; we were able to requalify it before any dispute.
• Include a mediation clause: in case of disagreement on the nature of the lease, a mediation clause can avoid a long and costly trial. The mediator, specialised in property law, can help qualify the contract amicably.
• Comply with environmental regulations: whether the lease is for fishing or farming, you must comply with fishing rules (catch declaration, size limits) and environmental obligations (reserved flow, ecological continuity). An offence can lead to criminal prosecution.

Further Reading: Related Case Law and Developments

The 1972 decision is part of a line of judgments distinguishing fishing from aquaculture. Thus, the Cour de cassation ruled, in a judgment of 20 February 1985 (No. 83-15.947), that the lease of a pond intended for recreational fishing, without restocking, constitutes a fishing lease. In contrast, in a judgment of 14 November 1991 (No. 90-19.123), it qualified as an agricultural lease the lease of a pond where the lessee practiced intensive restocking and regular feeding, with control of reproduction.

The trend of the courts is therefore clear: they focus on the reality of the activity, not the terms of the contract. Since 1972, the distinction has been refined with the rise of aquaculture. Today, a pond lease can be qualified as an agricultural lease if the lessee carries out fish farming activity within the meaning of Article L. 311-1 of the Rural Code (animal production activity). But for natural ponds in communication with the open environment, the qualification of fishing lease remains the rule.

For the future, with the development of "aquacultural farms" and extensive fish farming ponds, judges will be called upon to further clarify the criteria. A recent judgment of the Court of Appeal of Nîmes (2022) thus requalified as an agricultural lease the lease of a pond where the lessee carried out an annual restocking of 10,000 fry and supplementary feeding. The threshold between fishing and farming therefore remains blurred, hence the importance of appropriate legal advice.

In Practice: What to Do

FAQ:

• Can I lease my pond without a written contract? Yes, but it is risky. Without a written document, the qualification of the lease will be determined by the facts. In case of dispute, it will be difficult to prove the nature of the activity. A written contract is better.
• Which court has jurisdiction for a fishing lease? The tribunal judiciaire (formerly tribunal d'instance) of the location of the pond. For a pond in Amboise, it will be the tribunal judiciaire of Tours.
• Can I terminate a fishing lease without cause? Yes, subject to the notice period provided in the contract or, failing that, a reasonable notice period (3 to 6 months according to case law). Unlike an agricultural lease, there is no right to renewal.
• What remedies are available if the tenant does not pay? You can apply to the tribunal judiciaire by summary proceedings to obtain payment of arrears. You can also terminate the lease for non-payment, after formal notice.
• Do I need to declare the lease to the tax authorities? Yes, income from leasing a pond is taxable as rental income (if let unfurnished) or as industrial and commercial profits (if let with services). Remember to declare it.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →