It has always been taught, and held by the courts, that the commercial lease regime is only partly a matter of public policy and, moreover, that it is a protective rather than a directive public policy, which the person benefiting from it, generally the tenant, may waive once its right has accrued.

The public policy provisions are set out in Articles L. 145-15 and L. 145-16 of the Commercial Code, as well as in Article L. 145-45.

That the list of public policy provisions is not closed is nothing new, since for more than twenty years the case law of the Court of Cassation (Cour de cassation) has conferred public policy status on certain provisions of the regime.

However, prior to the Law of 18 June 2014, known as the “Pinel” Law, no one had questioned the protective nature of the public policy of the commercial lease regime.

The Pinel Law’s replacement of nullity with the sanction of clauses contrary to the public policy provisions of the regime being deemed unwritten has led many commentators to ask whether the public policy of the commercial lease regime is still a protective public policy or whether, as a result of that change, it has become a directive public policy.

But if so, should a distinction then be drawn between what would be directive public policy, sanctioned by the clause being deemed unwritten as laid down by statute, and what would have remained protective public policy, sanctionable only by nullity, namely the public policy “revealed” by the Court of Cassation? Are there several public policies within the commercial lease regime?