Explanation of Article 618
The article addresses the effect of violating the condition prohibiting disposition; it clarifies that if the condition prohibiting disposition meets the two conditions outlined in Article (617), in addition to the general conditions for dispositions, any disposition that violates this condition is void. This voiding is of a special kind because it relates to a private interest and not an interest connected to public order. Therefore, the court cannot rule the disposition void on its own unless it becomes clear that this private interest existed at the time of making the violating disposition. The condition prohibiting disposition is only valid according to Article (617) if it is for a reasonable period and intended to protect a legitimate interest of the disposer, the disposee, or a third party. The court must verify both: that the violating disposition occurred during the prohibition period and that the private interest intended by the stipulator existed at the time of the disposition. If it becomes clear that this interest ceased at the time of making the violating disposition, the prohibiting condition becomes void, and the violating disposition is considered valid. This includes the stipulator or the interested third party expressly or implicitly waiving the condition; such a waiver, if it occurs after the disposition, does not validate the disposition but reveals that the interest intended to be protected by this condition was absent at the time of making the violating disposition. Thus, even if the condition was originally valid, its effect ceases when the interest is absent, and the violating disposition is considered valid. Similarly, if it becomes clear that the purpose for which the condition was stipulated has ceased. The end of the article clarifies that ruling the violating disposition void does not affect the right of the successor of the prohibited party if this right was acquired in exchange and in good faith, to protect the stability of transactions and the good faith successor. For example, if a person gifts a car to his son on the condition that he does not sell it until he completes his studies, and the son sells it before that, the voiding of the sale cannot be invoked against a good faith buyer. The article stipulates two conditions for protecting the successor's right: the first condition is that this right is acquired in exchange, such as a sale, but if it is acquired without exchange, like a gift or a will, the voiding of the disposition can be invoked against it, as it is presumed not to be harmed by it, and if harm occurs, the successor can seek recourse against the prohibited disposer according to the rules of harm. The second condition is that the successor must be in good faith, defined as not knowing about the prohibiting condition at the time of the disposition and not being able to know even if they exercised the diligence expected of an ordinary person under the circumstances. The reason for not applying the voiding to the good faith successor, contrary to general rules, even though the successor is a party to the void contract itself, is that the voiding here is of a special kind, as previously mentioned, relating to a private interest and not public order. Moreover, voiding according to general rules occurs due to the absence of an essential element or condition of validity, and good faith of the contracting party is not conceivable, unlike someone contracting with the prohibited party, who might not be aware of what prevents their predecessor from disposing. It goes without saying that protecting the good faith successor from the voiding of the disposition in their right does not affect the right of the harmed party from the violating disposition to seek compensation from the prohibited disposer according to the rules of harm.
Related To
Article 618
If the condition prohibiting an assignee from disposition is valid in accordance with Article 617 of this Law, any act to the contrary shall be deemed null and void, without prejudice to the right of the successor of the prohibited person if he has acquired the same as a consideration in good faith.