Delivery of a summons to pay for the resolutory clause […]

Very often in VSEs, and even in some SMEs, the business is the main asset of the company, the commercial lease being its main component.

Therefore, when economic difficulties arise, it is important to preserve its existence.

A summons to pay based on the resolutory clause will usually be issued at the initiative of the landlord, through a court commissioner, when the tenant fails to pay his rent or more generally fails to fulfil his contractual obligations.

If the tenant does not meet his obligations within one month, the landlord will refer the matter to the interim relief judge in order to have the acquisition of the resolutory clause established, to obtain the eviction of his tenant as well as to have the latter ordered to pay the rental arrears by provision.

It is therefore in the tenant’s interest to oppose the payment order by issuing a writ of summons to the landlord.

1 – Bring the matter before the judge as quickly as possible

From the date of service of the payment order, the tenant has one month to pay the rental arrears and/or comply with his contractual obligations.

During this one-month period, the landlord may not bring any proceedings, either for payment of rent or for eviction of the tenant.

The tenant must refer the matter to the judge before the landlord refers the matter to the interim relief judge, which he can do as soon as the one-month period has elapsed in order to request the acquisition of the resolutory clause and the eviction of his tenant.

The referral of the tenant to the trial judge will have two consequences:

• The interim relief judge will become incompetent to rule on any eviction application,
• The interim relief judge will have no jurisdiction to rule on any claim for payment of the rental debt:
• If it is legitimately challenged in its entirety in the proceedings on the merits, the interim relief judge will consider that there is a serious challenge,
• If a pre-trial judge has been appointed in the proceedings on the merits before the writ of summary jurisdiction is issued, only the pre-trial judge will be competent to award an advance.

However, in the latter case, it is rare for a pre-trial judge to agree to grant the lessor an advance payment, whereas these are easily granted by the interim relief judge.

2 – Usefully contesting the order to pay

In order for the opposition to the summons to pay based on the resolutory clause to have any chance of success, it is necessary to check the validity of the document issued.

• Does it include the mandatory information?

These compulsory statements include the statements common to all judicial officers’ documents, which are listed in Article 648 of the Code of Civil Procedure.

The summons to pay must therefore be dated and signed, indicate the identity of the lessor (surname, first name, date and place of birth and address and/or name, registered office and representative), the identity of the bailiff (surname and first name) and the identity of the lessee (surname, first name and address and/or name and registered office).

It must also reproduce the resolutory clause contained in the lease as well as article L145-41 of the Commercial Code.

Finally, it must mention that the tenant has a period of one month to fulfil his contractual obligations pursuant to Article L 145-41 of the Commercial Code.

• Does it only mention the one-month period?

There should be no confusion about time limits.

A summons containing several deadlines is considered irregular if it is likely to create confusion in the mind of the tenant by preventing him from making the appropriate response to the injunctions within the required period (Cass., 3^rd civ., 26 June 2010, n°09-10.394; Cass., 3^rd civ., 17 March 2016, n°14-29.923).

It has thus been ruled that the indication of two time limits that do not refer to the same legal consequences is a source of confusion (Cass., 3^rd civ, 3 October 2007, n°06-16.361).

• Is the account detailed enough?

The tenant’s failings and/or the details of the sums claimed must be clear and free of any uncertainties: in this sense, the attached statement must clearly detail and distinguish between rent and provisions for condominium charges.

The Paris Court of Appeal thus recalled that: ” The summons must clearly inform the tenant and be sufficiently precise to enable the tenant to identify the causes of the sums claimed, their validity and the due dates of the sums claimed. (CA Paris, Pôle 5, Chambre 3, 19 October 2022, n° 19/18389).

On the other hand, an error in the amount will not generally lead to the annulment of the summons to pay, unless it was clearly issued in bad faith.

• Was it issued in good faith?

To be valid, the order to pay must be issued in good faith (Cass., 3^rd civ., 10 November 2010, n°09-15937, published in the bulletin; Cass., 3^rd civ., 11 February 2016, n°14-25.323).

The order to pay is thus deemed to have been issued in bad faith in the presence of disturbances in the use of the rented premises (Cass., 3^rd civ., 11 February 2004, n°02-20.184) or if the amount of the debt has been “artificially inflated” (CA Paris, 18 June 2015, n°13/24397).

Bad faith may also be deemed to exist where the landlord has granted the tenant a payment schedule and, at the same time, has issued a summons to pay.

***

If the summons appears to be in order and it is clear that the sums claimed are due, it will still be possible to request a delay in payment and/or to propose an amicable settlement to the landlord.

Failing this, the only possibility of preserving the commercial lease will be for the company to place itself under the protection of the Commercial Court by opening a receivership procedure.

3 – The effects of the collective procedure on the commercial lease

The opening of safeguard, receivership or liquidation proceedings against the lessee has a considerable effect on the relationship between the lessee and the lessor, as the Commercial Code provides for rules that derogate from those of the commercial lease statute and render certain lease clauses ineffective.

In the event of safeguarding or judicial recovery of the tenant, the decision to continue the lease falls within the exclusive competence of the judicial administrator or, in the absence of such an appointment, of the judicial representative at the request of the tenant.

The lessor may only rely on an automatic termination clause of the lease for reasons prior to the lessee’s insolvency proceedings if the acquisition of the termination clause was established by a court decision that had the force of res judicata before the opening of the insolvency proceedings, i.e. by a decision that cannot be appealed against with suspensive effect or that has not been appealed against within the required period.

However, in application of the rules governing insolvency proceedings, the continuation of the lease requires the payment of rent and charges throughout the observation period, failing which the tenant is exposed to a judicial liquidation.

4 – What about the landlord?

Of course, the lessor’s interests differ from those of the lessee when economic difficulties arise.

The landlord’s intention will usually be to quickly obtain the termination of the commercial lease in order to re-let the property to a solvent person.

However, Article L.145-11 of the Commercial Code requires him to respect this one-month period between the delivery of a summons to pay aimed at the resolutory clause and any action aimed at acquiring it.

It is therefore in the lessor’s interest to be vigilant in the event of late or non-payment of rent in order to take all necessary measures to protect these rights.