Assignment of Commercial Lease: Beware of Reasons in a Judgment Ordering an Expert Assessment

Imagine: you are the owner of commercial premises in Saint-Junien. You learn that your tenant has assigned his lease to a new trader without your consent. Furious, you take the matter to court. The judge orders an expert assessment to evaluate the damage, but in his reasons, he writes that the assignment is valid. You think: "It's lost, the judge has already decided." Yet the Court of Cassation agrees with you: these reasons do not bind the trial judge.

This decision of 11 January 1978 (No. 75-15.334) is a classic of procedural law: it recalls that a judgment which merely orders an investigative or interim measure does not have, on the merits, the authority of res judicata. In other words, the reasons are not final. Only the operative part (the part that orders something) counts. If the operative part merely says "expert assessment ordered, all rights reserved", then the Court of Appeal can overturn everything.

This legal subtlety has concrete consequences for any landlord or tenant facing a dispute over a commercial lease. Understanding this rule means avoiding giving up too early or, conversely, embarking on unnecessary proceedings. Analysis.

The Facts: A Story That Happens Every Day

Mr. Czaplinski is the owner of commercial premises located in Paris (but the lesson also applies in Isle or Saint-Junien). He leased them to a company carrying on a commercial representation activity. One day, this company assigns its lease to another company, without seeking the owner's consent. Mr. Czaplinski challenges this assignment: according to him, the lease stipulates that assignment is only possible to a successor in the same business, yet the assignee does not carry on the same activity (it provides commercial representation for the assignor, but not under the same conditions).

The case comes before the Tribunal de Grande Instance of Paris. The judge, before ruling on the merits, orders an expert assessment to determine the damage. In the reasons for his judgment, he writes: "Whereas the assignment is valid, because it was made to a successor in the same business." Mr. Czaplinski appeals. The Paris Court of Appeal, in a judgment of 25 January 1974, upholds the judgment by adopting these reasons. But the owner appeals to the Court of Cassation.

The Court of Cassation quashes the judgment: the Court of Appeal should not have considered itself bound by the reasons of the first judge. The latter had not ruled on the validity of the assignment in the operative part; he had merely ordered an expert assessment "all rights and submissions of the parties reserved". Consequently, the Court of Appeal had to examine the question of validity as if it had never been decided. Fatal error.

The Reasoning of the Court — Analysed

The legal basis is Article 107-3 of the Decree of 20 July 1972 (now codified in Article 482 of the Code of Civil Procedure). This text provides: "A judgment which merely orders an investigative measure or an interim measure does not have, on the merits, the authority of res judicata." Translation: a judge who says "I am not deciding the merits now, I first want an expert assessment" cannot, in his reasons, give his final opinion on the merits. That opinion is not clothed with the authority of res judicata (i.e., it is not binding for the future).

The Court of Cassation applies this principle strictly. It notes that the court, in its operative part, merely ordered the expert assessment while reserving all rights and submissions. Therefore, the reasons regarding the validity of the assignment are only "considerations" that are not final. The Court of Appeal, by adopting them as if they were settled, violated the text.

This is not a reversal: the Court of Cassation confirms constant case law. The judgment is important because it reminds trial judges that they must freely examine all questions, even those mentioned in the reasons of an interlocutory decision. For litigants, this means that a judgment ordering an expert assessment is not an anticipated condemnation.

What This Changes for You — Concretely

For the Landlord: if you challenge an assignment of lease and the judge orders an expert assessment while suggesting that the assignment is valid, do not despair. You will be able to argue the merits before the Court of Appeal without being bound by these reasons. Example: in Isle, a landlord whose tenant assigned the lease to a fast-food company, whereas the contract required a traditional food business, can succeed even if the first judge wrote "the assignment is compliant".

For the Assignor or Assignee Tenant: conversely, if the judge orders an expert assessment while expressing doubts about the validity of the assignment, you cannot rely on these reasons. The final decision may be different. You must therefore prepare your case for appeal as if everything has to be proved.

For the Purchaser of a Business: be vigilant. A judgment ordering an expert assessment is not a validation of your title. If the owner challenges the assignment, wait for the final decision before investing heavily. Example with figures: in Saint-Junien, a trader purchased a lease premium for €40,000 on the strength of a favourable expert assessment order, but the Court of Appeal ultimately annulled the assignment. He lost his investment.

Four Tips to Avoid This Type of Dispute

• Draft a clear assignment clause in the lease: specify the conditions (identical activity, prior approval, etc.). Avoid vague terms like "successor in the same business". Example: "The tenant may only assign the lease to a natural or legal person carrying on a bakery-pastry activity, to the exclusion of any other activity."
• Require written approval before any assignment: even if the lease permits it, ask the landlord to give written consent. This avoids later disputes. Keep this consent carefully.
• In case of dispute, do not rely on the reasons of an expert assessment order: if the judge orders an expert assessment, consider that everything is still possible. Prepare your argument for appeal without relying on the first judge's writings.
• Consult a lawyer before any contested assignment: a professional can analyse the lease clauses and advise you on the best strategy. In Saint-Junien as in Paris, a preventive consultation costs less than a trial.

Further Reading: Related Case Law and Developments

This decision fits into a consistent line. Already in 1975 (Civ. 2e, 4 June 1975, No. 73-14.712), the Court of Cassation held that reasons in a judgment ordering an expert assessment cannot prejudge the merits. More recently, in 2015 (Civ. 2e, 12 March 2015, No. 14-10.225), it recalled that the authority of res judicata attaches only to the operative part, not to the reasons.

The trend is therefore clear: trial judges must freely examine questions of substance, even if a first judge expressed an opinion in his reasons. This reinforces legal certainty for litigants, who are not trapped by obiter dicta (incidental remarks). In practice, this means that an expert assessment order is never an end in itself: the judicial battle continues.

Checklist Before Taking Action

1. Check the operative part of the judgment: what exactly does the ordering part say? If it merely orders an expert assessment while reserving rights, the reasons are not final.
2. Do not stop at the reasons: even if the judge writes "the assignment is valid", this does not prevent you from challenging it on appeal. Prepare your case as if nothing had been said.
3. Consult a lawyer before the appeal: the appeal deadline is one month (or two months for decisions rendered outside metropolitan France). Do not let it pass.
4. Gather evidence: lease, assignment deed, correspondence, evidence of the activity carried on. Everything will be examined again by the Court of Appeal.
5. Assess the cost of proceedings: expert assessment, lawyer's fees, procedural costs. Sometimes a negotiation is more cost-effective than an appeal.

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