Civil Code > TITLE VIII JOINT OWNERSHIP, USUFRUCT AND OTHER RIGHTS IN RAM 5

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Chapter 5. Restrictions on the right to dispose of certain things

Section 1. Contractual rights of purchase or pre-emption

Art. 1410.- Definition.

(1) A promise of sale is an agreement whereby the owner of a thing under takes to sell such thing to a specified person, should such person wish to buy it.

(2) A right of pre-emption is a right deriving from an agreement whereby the owner of a thing undertakes to sell such thing in preference to a specified person, should the owner decide to sell it.

Art. 1411.- Scope of this Chapter.

(1) An agreement for a promise of sale or right or pre-emption shall not constitute a restriction on ownership under this Section nor shall it give rise to a right in rem unless it relates to an immovable or a specific chattel.

(2) The rights in obligations which it creates for the parties shall be as provided by Books IV and V of this Code.

(3) The provisions of the following Articles shall only apply to rights in rem created by such agreement.

Art. 1412.- Conditions for validity.

An agreement under this Section shall be of no effect unless it is made an writing and specifies the time within which and price for which the person in whose favour the agreement is made may require its performance.

Art. 1413.- Maximum time limit.

(1) No agreement under this Section shall be effective for more than ten years.

(2) Where the period fixed in the agreement is longer than ten years, it shall be reduced to ten years.

Art. 1414.- Expropriation.

The beneficiary of a right of recovery may not exercise his right with regard to immovable property which is expropriated.

Art. 1415.- Right not transmissible.

(1) Unless otherwise agreed, rights granted by agreements under this Section shall attach solely to the person in whose favour the agreement was made.

(2) Such rights may not be alienated by such person nor shall they pass to his heirs.

(3) The creditors of such person may not exercise his rights in his stead.

Art. 1416.- Promise of sale. 1. Creation of rights in rem.

(1) Whosoever has promised to sell a thing to another may not alienate such thing nor charge it with a right in rem for so long as the promise is effective.

(2) Notwithstanding the provisions of sub-art. (1), the thing may be pledged or mortgaged but for an amount not exceeding the price fixed in the agreement whereby the promise was made.

Art. 1417.- 2. Attachment of thing.

(1) Where the thing to which the promise relates is attached, the owner shall give notice thereof to the person in whose favour the promise was made.

(2) Such person shall loss his right if he fails to exercise it prior to the thing being sold by auction.

Art. 1418.- Right of pre-emption.-1. Creation of rights in rem.

(1) Unless otherwise agreed, whosoever has granted a right of pre-emption on a thing may create rights in rem on such thing.

(2) Where he intends to sell the thing, he shall inform the beneficiary of the right of pre-emption of all the charges existing on such thing.

(3) Where the thing is attached, the owner shall give notice thereof to the beneficiary of the right of pre-emption.

Art. 1419.- 2. Time for exercising right.

(1) Aright of pre-emption shall be exercised within two months from the beneficiary having been informed of the owner’s intention to sell.

(2) The parties may by agreement extend this period to one year.

(3) Where a period exceeding one year has been agreed, it shall be reduced to one year.

Art. 1420.- 3. Failure to exercise right.

(1) The beneficiary shall loss his right where he fails to exercise it within the time laid down in Art. 1419.

(2) The owner may thereupon freely alienate the thing.

(3) He may also retain the ownership thereof.

Art. 1421.- 4. Attachment.

(1) Where the thing to which the right relates is attached, the beneficiary shall lose his right where he fails to exercise it prior to such thing being sold by auction.

(2) Any provisions to the contrary shall be of no effect.

Art. 1422.- Effect on third parties. -1. Conditions.

Agreements under this Section which relate to registered immovables shall not affect third parties unless they have been entered in the register of immovables.

Art. 1423.- 2. Other immovables.

(1) Agreements under this Section which relate to other immovables shall not affect third parties unless they have been registered in the registry of the court of the place where the immovable is situate.

(2) Failing registration, such agreements shall only affect such third parties as knew or should have known them.

Art. 1424.- 3. Movables.

Agreements under this Section which relate to movables shall only affect such third parties as knew or should have known them.

Art. 1425.- 4. Right of beneficiary.

(1) Where an agreement under this Section may be set up against third parties, the beneficiary may require any third party who has acquired the ownership of an immovable in violation of the rights of the beneficiary to surrender such immovable to him on the conditions laid down in the agreement creating the right of pre-emption.

(2) Notwithstanding any agreement to the contrary, the beneficiary shall lose his right where he fails to exercise it within six months from the third party having taken possession of the immovable.

(3) Nothing shall affect the right of such third party to bring an action against the person from whom he acquired the immovable.

Section 2. Provisions prohibiting assignment or attachment of certain things.

Art. 1426.- Provisions relating to corporeal chattel.

(1) Provisions whereby the producer, maker, seller or owner of a corporeal chattel limits its assignment or attachment shall affect such persons only as accept them.

(2) They shall not affect third parties unless they are expressly permitted by law.

Art. 1427.- Immovable.

The owner of an immovable may not except in the cases provided by law stipulate that it may not be assigned or attached.

Art. 1428.- Right of person assigning immovable.

(1) Whosoever assigns an immovable may prohibit the person acquiring it from assigning such immovable or may subject any further assignment to specific conditions.

(2) He may stipulate that the immovable shall not be liable to be attached in the hands of the person who acquires it.

Art. 1429.- Interpretation provisions.

(1) Any prohibitive or restrictive provision as defined in Art. 1428 shall be interpreted in a restrictive manner.

(2) A provisions prohibiting assignment shall thus not be deemed to prohibit attachment.

Art. 1430.- Form of provision.

A provision prohibiting assignment of attachment shall be of no effect unless it is made in writing and specifies the duration of the prohibition.

Art. 1431.- Maximum period.

(1) No restrictive or prohibitive provision shall be effective for more than twenty years or more than the life of the person who acquires the immovable.

(2) A provision made for more than twenty years shall be effective for twenty years only.

(3) The periods mentioned in this Article may not be reckoned from a day later than that when the ownership of the immovable was transferred.

Art. 1432.- Effect on third parties.

A prohibitive or restrictive provision shall not affect third parties unless it has been entered in the register of immovables.

Art. 1433.- Power of the court. -1. Provision prohibiting attachment.

Notwithstanding any provision to the contrary, the court may authorize the attachment of an immovable in respect of which a provision prohibiting attachment was made where:

(a) the creditor applying for attachment requires the payment of alimonies due to the owner of the immovable or to another person to whom other owner is bound by an obligation of maintenance; or

(b) the claim arises from a criminal offence committed by the owner.

Art. 1434.- 2. Provision prohibiting assignment.

(1) The court may authorize the assignment of an immovable in respect of which a provision prohibiting assignment was made, where it is of opinion that the interest of the owner requires that such immovable be assigned.

(2) The parties may by express agreement set aside the power vested in the court.

(3) The court may not grant an authorization under sub-art. (1) where the person who has transferred the ownership of the immovable is alive and capable of expressing his will.

Art. 1435.- Effect of provision prohibiting attachment.- 1. Owner of immovable.

(1) The owner of an immovable in respect of which a provision prohibiting attachment was made may enforce such provision as long as the immovable has not been sold by auction following attachment.

(2) Any anticipated waiving of the right to enforce such provision shall be of no effect.

(3) The owner shall be liable for the costs of attachment where be failed to inform in due time the creditor of the existence of the provision prohibiting attachment.

Art. 1436.- 2. Other persons.

(1) A provisions prohibiting attachment may be enforced by the person who made this provision or by a third party appointed by such person to ensure compliance with such provision.

(2) Where the owner of the immovable does not propose to enforce this provision himself, he shall give notice of the attachment to the person entitled to enforce it under sub-art. (1)

(3) Notice shall be given to the same person by the creditor proceeding to attachment.

Art. 1437.- 3. Time for enforcing provision.

(1) Where a person who has been informed of the attachment proposes to enforce the provision prohibiting attachment, he shall do so under pain of losing his right prior to the attached immovable being sold by auction.

(2) Where such person has not been informed of the attachment, he may enforce the provision within two years from the sale by auction.

(3) The periods of time laid down in this Article may not be extended in the instrument providing for the prohibition of attachment.

Art. 1438.- 4. Duty of purchaser.

(1) Whosoever enforces a provisions prohibiting attachment may require the person having acquired the immovable at the sale by auction to transfer it to him and shall in such case pay the price fixed in the instrument providing for prohibition or, where no price has been fixed therein, the price at which the immovable was knocked down to the purchaser.

(2) The provisions of the Chapter of this Code relating to “Unlawful enrichment” shall apply as regards the expenses made by the purchaser on the immovable and the deteriorations occasioned to the immovable when it was in the possession of the purchaser (Art. 2162-2178).

Art. 1439.- 5. Position of subsequent owner.

(1) Where the purchaser at the auction sale has assigned the immovable, the provision prohibiting attachment may not be enforced against the new owner unless he is shown to have known of the prohibition or he acquired the immovable gratuitously.

(2) Where the provision may be enforced, the new owner shall be in the same position as the purchaser at the auction sale would have been.

(3) The provision shall lapse where it may not be enforced.

Art. 1440.- Effect of provision prohibiting assignment.- 1. Who may enforce it.

(1) The owner who has assigned an immovable in violation of a provision prohibiting assignment may not invoke such provision to the detriment of the buyer.

(2) The said provision may only be enforced by the person having stipulated the prohibition or by a third party appointed by such person to ensure compliance with such provision.

Art. 1441.- 2. Time limit.

A provision prohibiting assignment may not be enforced except within two years from the assignment of the immovable and prior to the expiry of the period fixed in Art. 1431.

Art. 1442.- 3. Enforcement.

(1) The person who stipulated the prohibition or such other person as is entitled to do so under the instrument proving for prohibition may, within the period fixed in Art. 1441, exercise a right of pre-emption on the immovable on the conditions lad down in the instrument providing for prohibition.

(2) Nothing shall affect the right of the purchaser to bring an action against the person from whom he bought the immovable.

Art. 1443.- Trusts.

Nothing shall affect those provisions in the Title of this Code relating to “Bodies corporate and property with a specific destination” which deal with trusts (Art. 516-544).

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