“Since a stipulation considered unwritten is also deemed never to have existed, the claim for restitution of undue payment must be calculated on the basis of the amount of rent that would have been due in the absence of application of such a stipulation” (3rd Civ., 23 January 2025, appeal no. 23-18.643, published in the bulletin).
In this case, the tenant challenged a summons to pay and a notice to vacate issued without an offer of renewal, with a claim for payment of eviction compensation.
In particular, the lessee requested that the indexation clause in the lease be considered unwritten, and sought repayment of the overpayment made by the lessor retroactively over a period of 5 years, but on the basis of the initial rent.
However, after considering the indexation clause to be unwritten, the Court of appeal, within the limitation period, calculated the tenant’s claim on the basis of the rent paid on the date on which the limitation period began.
Recalling that a stipulation judged unwritten is deemed never to have existed, the Cour de cassation quashed the decision of the Court of appeal, stating that the rent was never supposed to be indexed, so the calculation had to be based on the original rent.
Indeed, confirming its constant jurisprudence, “an action seeking to have a commercial lease clause deemed unwritten is not subject to prescription” (3rdCiv., 16 November 2023, appeal n° 22-14.091, published).
Therefore, as the unlawful clause is deemed to have been unwritten on the day the lease was entered into, and even though undue payment can only be claimed for the last five years, the rent used as a reference for calculating the undue payment can only be the original rent, as it was never supposed to be indexed.
