Termination of Commercial Lease for Failure to Operate: Force Majeure Invoked Too Late Is Inadmissible

You are the owner of commercial premises in Saint-Étienne, Rue de la Résistance. You let them to a trader who, for six months, has not been operating. You ask for an explanation, and he replies: "It's just bad luck – refugees squatted the premises and I couldn't reopen." You want to terminate the lease. But he, in court, raises this argument for the first time before the Court of Cassation. Is it admissible?

The answer is no. The Court of Cassation, in a judgment of 24 May 1965, held that a plea based on force majeure (an unforeseeable, irresistible, and external event) is a mixed question of fact and law and cannot be raised for the first time before it. In short, the tenant must raise this plea at the outset of proceedings, before the first-instance judges. Otherwise, it is too late.

This decision, nearly 60 years old, remains an absolute reference in commercial lease law. It reminds us of a fundamental procedural rule: arguments must be presented at the right time. In other words, a landlord seeking to terminate a lease for failure to operate should check whether the tenant has already invoked force majeure at first instance. If not, the landlord can rest easy: the excuse will not fly in cassation.

The Facts: An Everyday Story

Imagine a building in Paris, but the scenario could just as easily take place in Firminy, in a commercial premises on Place de l'Église. A landlord, Mr X, granted a commercial lease to a tenant. The lease requires the premises to be used for commercial purposes. But then, one day, refugees (probably displaced persons after the war) occupy the entire premises for their own accommodation. All commercial activity ceases.

The landlord sues the tenant for termination of the lease for failure to use the premises commercially. The tenant, in his defence, argues that he was unable to operate due to force majeure (the occupation by refugees). But he raises this argument only for the first time before the Court of Cassation, after losing on appeal.

The Paris Court of Appeal, on 30 November 1961, had already ordered termination. The tenant appealed to the Court of Cassation, invoking this new plea. The Court of Cassation declared it inadmissible because it mixed factual elements (the occupation, its unforeseeable nature, etc.) and legal elements (the concept of force majeure). However, the Court of Cassation only reviews questions of law, not fact. A new plea mixing fact and law must have been submitted to the lower courts (commercial court, court of appeal) to be examined.

The Reasoning of the Court – Analysed

The Court of Cassation relies on a fundamental procedural principle: new pleas mixing fact and law are inadmissible before it. Article 1134 of the Civil Code (now Article 1103) provides that agreements must be performed in good faith. But here, the key provisions are Article 1728 of the same Code (tenant's obligation to use the leased thing as a prudent administrator) and Article 1147 (force majeure).

Note, however, that force majeure is an unforeseeable, irresistible, and external event. The tenant claims that the occupation by refugees constituted such a case. But for the Court of Cassation to verify whether it was indeed force majeure, it needs the lower courts to have already analysed the facts: when did the refugees arrive? Did the tenant do everything to evict them? Was the occupation truly unforeseeable?

In short, the tenant should have said from the commercial court: "I did not operate because of this occupation; it is a case of force majeure." He did not. Nor did he on appeal. He waited until cassation. Too late.

What few people know is that this rule is an application of the maxim "no nullity without prejudice" (Article 114 of the Code of Civil Procedure). But also of the requirement of procedural fairness. The parties must present all their pleas at first instance so that the other side can respond and the judge can rule with full knowledge of the facts.

undefined, I have come across cases where tenants raised arguments in cassation that they had never raised before the lower courts: a latent defect, an abuse of right, etc. Result: inadmissibility. And the lease is terminated.

What This Means for You – In Practice

For the landlord: if you are in Saint-Étienne and your tenant ceases to operate, you can bring a termination action. If the tenant invokes force majeure, check that he did so from the statement of claim. Otherwise, he cannot rely on it in cassation. This gives you security: once the judgment becomes final, the tenant cannot come back with a new excuse.

For the tenant: if you face an event that prevents you from operating (fire, occupation, epidemic…), you must immediately notify your landlord by registered letter AND raise it in your defence submissions before the court. Do not delay. Concrete example: in Firminy, a tenant of a 50 m² premises paying €800/month rent lost his lease because he invoked force majeure only in cassation. Result: he had to vacate, pay arrears and procedural costs (about €3,000).

For advisors: this decision reminds you to list all possible defences from the statement of claim. Force majeure, but also the exception of non-performance, nullity of the notice, etc. If you forget a plea at first instance, it is lost for the rest of the proceedings.

Four Tips to Avoid This Type of Dispute

• Draft a precise lease regarding the obligation to operate: specify the nature of the business, opening hours, and consequences of failure to operate (forfeiture clause). In Saint-Étienne, a well-drafted lease can avoid years of litigation.
• In the event of an incident, the tenant must notify the landlord in writing: registered letter with acknowledgement of receipt, detailing the circumstances (occupation, damage…) and stating that it is a case of force majeure. Keep a copy.
• The landlord must record the failure to operate: have a bailiff draw up a report (about €200) to prove that the premises are closed, with no activity. This is solid evidence.
• Act quickly: if the failure to operate lasts more than three months, you can trigger the forfeiture clause. Do not delay, as the tenant might later claim a resumption of activity.

Further Analysis: Related Case Law and Developments

This 1965 decision is part of consistent case law. For example, a Court of Cassation judgment of 12 February 2003 (No. 00-21.923) reiterated that a plea based on force majeure, mixing fact and law, is inadmissible if raised for the first time in cassation. Similarly, a judgment of 8 July 2020 (No. 19-10.438) extended this rule to the concept of fortuitous event.

The trend of the courts is clear: new pleas are prohibited in cassation, unless they are purely legal (e.g., a plea based on a public order provision that was not invoked). But force majeure is never a purely legal plea because it depends on the facts. Therefore, this case law remains current.

What this means for the future: with the multiplication of health, economic, or climate crises, tenants will be tempted to invoke force majeure. But they must do so at first instance, on pain of inadmissibility. Landlords can therefore rest assured: the courts do not tolerate late "reservations."

What You Absolutely Must Remember

FAQ:

1. Can I invoke force majeure for the first time on appeal? Yes, in principle, because an appeal allows new pleas (Articles 563 et seq. of the Code of Civil Procedure). But beware: if you did not do so at first instance, you risk losing the ability to do so in cassation.
2. What if the tenant invokes force majeure for the first time in cassation? The landlord must raise the inadmissibility of the plea. This is an unanswerable argument: the Court of Cassation will reject it.
3. What is the time limit to bring a termination action for failure to operate? There is no statutory time limit, but it is advisable to act within 3 to 6 months of discovering the failure, to avoid a resumption of activity or prescription.
4. How to prove force majeure? The tenant must demonstrate an unforeseeable, irresistible, and external event. Examples: flooding, fire, illegal occupation. He must provide evidence (reports, witness statements, administrative decisions).
5. What are the risks for a tenant who loses his lease? He must vacate, pay arrears, procedural costs, and possibly damages to the landlord. In Saint-Étienne, this can amount to several thousand euros.

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