Explanation of Article 306
This period addresses the statement of who has the right to invoke the plea of prescription. The article decided that the court does not have the right to dismiss the case due to prescription on its own initiative, and this results in the following:
-1- Although this plea is based on considerations related to public interest, it is not of public order; rather, it is established for the benefit of the debtor, who is more entitled to invoke it.
-2- If the debtor or the interested party does not invoke this plea before the court, the case is considered according to the usual procedures, and the court does not have the right to alert the parties to this plea, as this would be considered guidance from the court to one of the litigants, which is prohibited.
The article decided that the right to invoke prescription is only established for those who meet one of two conditions:
Firstly: The debtor, who is the original obligor of the debt, and invoking this plea according to this condition is not limited to the debtor alone but extends to include both his general successor, such as the heir, or his special successor, such as the assignee of the debt, taking into account that the transfer of rights to them does not affect the running of the prescription period.
Secondly: The person invoking the prescription must have an interest in doing so, such as the guarantor, the joint debtor, the possessor of the mortgaged property, and the creditor of the debtor if the debt that has prescribed is of a higher rank than the debt of this creditor by mortgage or privilege and the like, or if it competes with his debt in a way that harms him; for example, if the debtor's assets do not cover both debts, the creditor of the debtor has the right in this case to invoke the prescription through indirect action.
The creditors of the debtor also have the right to file an action for the non-effectiveness of the debtor's disposition against them whenever its conditions are met against the creditor to whom the debtor has waived his right to invoke the prescription; so that after the judgment is issued in this action, they can demand the creditor to return the debt through indirect action whenever its conditions are met.
Anyone who has an interest in clearing the debtor's liability from the debt has the right to invoke the prescription.
The temporal scope for the debtor or any interested party to exercise their right to the plea of prescription includes all stages of the case before the court of first instance and before the court of appeal, even if it was not invoked before the court of first instance.
The discussion of the debtor or the interested party on the subject of the case does not waive their right to invoke this plea, as the plea in this case is a substantive plea related to the subject of the case, which is the debt, and it follows that it cannot be invoked for the first time before the Supreme Court as it is one of the substantive pleas that cannot be invoked for the first time before this court unless it was invoked before the court of first instance or the court of appeal.
There is no specific form required for the debtor or the interested party to request the dismissal of the case, as it is sufficient to invoke it in the statement of claim or in the statement of appeal, or in the defense memoranda submitted to the court, or to record this plea in the session minutes.
It should be noted that the court cannot infer this plea implicitly from the actions of the debtor or the interested party; rather, it is necessary for either of them to explicitly invoke it before the court. The wisdom behind this is that the failure of the debtor or the interested party to explicitly invoke this plea establishes a presumption that their failure to invoke it is an implicit waiver of this right as previously stated.
Related To
Article 306
The court’s decision to not hear a claim due to the lapse of the statute of limitations shall be made only upon a petition by the debtor or a party with interest.