Temporary cessation of activity and disappearance of clientele: what the Court of Cassation says

Imagine: you own a commercial property in Cournon-d'Auvergne, leased to a trader who has operated a business there for years. One day, the tenant dies. The business remains closed for several months. When the heirs reopen, you refuse to renew the lease (the contract for renting the commercial premises), considering that the clientele has disappeared. Wrong? The Court of Cassation (the highest French judicial court) ruled in 2010: a temporary cessation of activity does not automatically lead to the loss of clientele.

This decision, often overlooked, overturns preconceived ideas. For both owners and tenants, it reminds us that the concept of clientele is much more subtle than a simple flow of passers-by. So, what exactly happened in Lourdes – the case concerns a business serving pilgrims – and how does this apply to your situation in Chamalières or elsewhere?

Let's dive into the facts, the reasoning of the judges, and above all, what this changes concretely for you.

The facts: a story like any other

Mr Giuseppe ..., holder since 1 January 1998 of a commercial lease (lease of premises intended for the operation of a business) in a town heavily frequented by pilgrims, operated a business (set of movable and intangible assets allocated to a commercial activity) selling religious articles and souvenirs. Upon his death, his operation was interrupted for several months. His widow and children, constituted as an SARL (limited liability company), resumed the activity, as permitted by the lease. But the landlord (lessor) refused to renew the lease, citing the disappearance of clientele due to this interruption.

The court of appeal (second-instance court) had ruled in favour of the heirs, considering that the clientele, mainly consisting of passing pilgrims, had not suffered from the temporary closure. The landlord appealed to the Court of Cassation.

On 15 September 2010, the Court of Cassation dismissed the appeal, upholding the appeal judgment. It held that the temporary cessation of activity does not in itself imply the disappearance of the clientele, provided that the custom (commercial appeal linked to the location) and the clientele have naturally reconstituted themselves upon reopening.

The reasoning of the court — dissected

The central question was whether the interruption of operations following the death of the operator had caused the business to lose its current and certain clientele (an essential condition for benefiting from the right to renew the commercial lease). The landlord argued yes: without activity, no clientele. The heirs, on the other hand, claimed that the clientele was attached to the location and the nature of the activity.

The Court of Cassation relied on Articles L. 145-8 et seq. of the Commercial Code (relating to the status of commercial leases), and more specifically on the concept of "current and certain clientele" required for renewal. It recalled that this clientele must exist at the time of the renewal request, but that a temporary interruption of activity does not cause it to disappear if it can reconstitute itself.

The judges sovereignly (finally on the facts) found that the activity concerned almost exclusively a passing clientele – the pilgrims of Lourdes – and that the custom had not been affected. The clientele had naturally reconstituted itself upon reopening. In other words, the footfall of the location and the reputation of the business survived the temporary closure.

This decision is not a reversal (change in case law) but a confirmation of a protective trend for businesses. It reminds us that clientele is not a mere instantaneous flow, but a commercial potential attached to the location and reputation.

What this changes for you — concretely

For landlord owners (those who rent commercial premises), this decision limits your grounds for refusing renewal. You can no longer invoke a temporary closure, even a long one, to argue the disappearance of clientele, if it reconstitutes itself. Concrete example: if your tenant in Chamalières closes shop for six months for works, you cannot refuse renewal of the lease by claiming that the clientele is lost, especially if the location is busy.

For tenant operators, this is valuable protection. In the event of death, illness or works, you can interrupt the activity without losing your right to renewal, provided that the business retains its attractiveness. Beware: if the closure is too long or if the activity changes, the reasoning might be different. Consider maintaining a minimal presence (signage, website, etc.).

For purchasers of businesses, check the history of activity: a temporary interruption is not a deal-breaker, but demand proof of effective resumption. And if you are in litigation, this case law is a weapon to defend the value of the business.

Four tips to avoid this type of dispute

• Insert a reopening clause in the lease: provide for a maximum interruption period (e.g., 6 months) beyond which the landlord may demand termination. This secures both parties.
• Maintain minimal activity: even in case of closure, keep an online presence, answer calls, or temporarily sublet. Clientele feeds on signs of life.
• Document the clientele: keep evidence of turnover before and after the interruption, testimonials from suppliers or customers. In case of a dispute, these elements are decisive.
• Consult a lawyer before any decision: do not refuse a renewal without legal advice. A mistake can cost you damages (eviction compensation).

Further reading: related case law and developments

This decision is part of a line of case law protecting businesses. For example, the Court of Cassation judgment of 13 January 2009 (No. 07-21.305) had already held that an administrative closure (for non-compliance) did not automatically entail the loss of clientele. Conversely, a judgment of 3 May 2018 (No. 17-14.879) refused renewal to a vehicle rental company whose activity had ceased for 18 months due to lack of vehicles, considering that the clientele was too dependent on actual operation.

The current trend is therefore nuanced: the more the activity is linked to a geographical location (passing trade) and the less it depends on the operator, the greater the tolerance. In the future, judges should continue to examine on a case-by-case basis the capacity for reconstitution of the clientele.

Checklist before acting

• Before temporarily closing: inform the landlord in writing, set a reopening date, and keep all evidence of prior activity.
• If the landlord refuses renewal: check whether they invoke the disappearance of clientele. Gather evidence of your clientele (accounts, photos, attestations).
• In case of a dispute: file a claim with the judicial court (formerly the High Court) within two years of the refusal. An expert assessment may be ordered to evaluate the clientele.
• For the landlord: do not refuse without a serious reason. An abusive refusal may lead to payment of eviction compensation (often several years' rent).

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 →