Explanation of Article 305
The article in its three paragraphs addresses the ruling on the agreement to shorten or extend the limitation period, and the ruling on the debtor's waiver of his right to invoke the limitation period. The first paragraph states that it is not permissible to agree on shortening or extending the limitation period, whether this agreement is made at the inception of the debt or after its inception, and if such an agreement occurs, it is absolutely void; the court, on its own initiative and without a request from any of the parties, can annul it and not apply it, and apply the limitation period stipulated in the system to the case before it whenever the debtor or the interested party invokes it. The wisdom behind this is that determining the limitation period is a matter related to public order, and the legislator considered in its determination considerations related to the public interest, the stability of transactions, the nature of debts, and the relationships between their parties, and leaving the determination of this period to the agreement of the parties contradicts the purpose intended by the legislator in determining these periods. The second paragraph clarifies that it is not permissible for the debtor to waive his right to invoke the limitation period before his right to it is established; this waiver is considered void as it violates public order; the court, on its own initiative, may not apply its effect and may accept the debtor's or the interested party's plea of non-hearing of the case due to the limitation period. According to what the article contains, if the debtor's waiver of his right to invoke the limitation period occurs after the expiration of the limitation period, it is valid and binding on the debtor, who cannot retract it, as it is a unilateral act that does not depend on the creditor's acceptance. The paragraph does not require the waiver of the right to invoke the limitation period, once the right is established, to be explicit; thus, the waiver can be explicit and does not require a specific form, as it can be written or oral, and it can also be implicit, inferred from the debtor's actions, but this waiver is not presumed as the original state is its absence, and therefore, in case of doubt, it is interpreted in his favor, as he bears the burden of this waiver. The mere delay of the debtor in pleading the limitation period in the face of a lawsuit filed against him is not considered an implicit waiver of the plea unless it is inferred from the circumstances of his delay in pleading it; otherwise, the debtor has the right to plead the limitation period at any stage of the lawsuit. Examples of implicit waiver include the debtor paying part of the debt and requesting a grace period to pay the remainder, or providing a mortgage or guarantor for the debt after the expiration of the limitation period. The waiver of the right to invoke the limitation period results in a new period starting from the date of this waiver, and the new period is according to the nature of the debt; if it is subject to a ten-year limitation, the new period is likewise, and if it is a periodic renewable right, the new period is five years, and if it is a right mentioned in paragraph (a) of Article (296) or in Article (297), which are the rights of free professionals, merchants, accommodation and restaurant owners, and workers' rights, the new period is ten years, due to the absence of the presumption of payment that was the justification for shortening the limitation of these rights. It is worth noting that the debtor may waive his right to invoke the limitation period during the running of the limitation period, and this waiver is valid concerning the period that has elapsed, as it is a waiver of a right established for him; it is void concerning the remaining period for the completion of the limitation, as it is a waiver of a future period for which the debtor has no established right; thus, the period that has elapsed is nullified by waiving it, and it is not considered in calculating the limitation, and a new limitation begins to run from the time of waiving the elapsed period, not from the time of the completion of the previous limitation. The third paragraph states that the debtor's waiver of his right to invoke the limitation period against one of the creditors applies, in principle, to the rest of the creditors, except if this waiver harms the rest of the creditors, such as if this waiver results in the debtor's assets being insufficient to pay all the debts owed if the debt for which the limitation was waived is added. In this case, the debtor's creditors may challenge this waiver through a lawsuit for the non-enforceability of his act against them, and if the judgment is in their favor, they may invoke the limitation of this creditor's right through an indirect lawsuit, as will be explained in the following article (306).
Related To
Article 305
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No agreement may be made to shorten or extend the statute of limitations.
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A debtor may not relinquish his right to assert the statute of limitations before such right is established in his favor.
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The debtor’s renunciation of his right to assert the statute of limitations against some creditors shall not be effective against the remaining creditors if such renunciation causes harm to them.