Explanation of Article 46
This article addresses the explanation of "incapacitation," which is: preventing a person from disposing of their property. The article stipulates that incapacitation must be by a "judicial ruling," meaning that a court must issue a ruling to incapacitate the person. It is not sufficient to merely issue an administrative or personal decision, except in cases exempted by the article, which are:
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First: If the incapacitation is "out of necessity," meaning there is an urgent necessity that calls for incapacitating the person. For example, if a person is squandering their wealth and there is a fear of losing it, in this case, it is permissible to incapacitate them by a decision from the competent court.
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Second: If the incapacitation is "for the sake of interest," meaning there is a public or private interest that calls for incapacitating the person. For example, if a person is indebted and there is a fear of their wealth being seized, in this case, it is permissible to incapacitate them by a decision from the competent court.
It should be noted that this ruling applies to all types of incapacitation, whether it is incapacitation of property, incapacitation of disposition, or incapacitation of the person.
Incapacitation results in the "nullification of the incapacitated person's dispositions," so they have no legal effect, except in cases exempted by the article, which are:
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First: If the disposition is "purely beneficial," in this case, the disposition is "valid" and has its legal effects.
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Second: If the disposition is "purely harmful," in this case, the disposition is "void" and has no legal effect.
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Third: If the disposition is "between benefit and harm," in this case, the disposition is "voidable" and has its legal effects unless the person with diminished capacity, their guardian, or their trustee requests its nullification. In this case, the disposition is nullified and has no legal effect.
This article is considered one of the most important articles related to incapacitation, as it protects the rights of the incapacitated person and provides them with the opportunity to nullify the disposition if it is harmful to them.
Related To
Article 46
If the contracting parties make in the contract an explicit or implicit reference to the provisions of a model document, to specific rules, or to any other document, the same shall be deemed part of the contract.