Author: Mgr. Lucie Kačerová
After six years of Act N. 89/2012 Coll., civil code (or the so-called New Civil Code – hereinafter referred to as NCC) being effective, it is hard to ignore that the legislation surrounding the right of first refusal is one of the most contentious topics. The reason is the legislation regarding the (non)existence of the right of first refusal for co-owners of immovable property, which has already changed several times.
Those changes, though, cannot overshadow the problematics of the condition subsequent embedded in Section 2145 of the Civil Code, or more precisely, their effect on the purchaser in cases where the right of first refusal was not exercised or was infringed by the previous owner.
Section 2145 stipulates that “if a potential buyer knew or must have known of the right of first refusal, the contract is presumed to have been concluded with a condition subsequent applying the right of first refusal.”
Considering that according to the explanatory memorandum of the NCC the regulation does not have a clear source of inspiration, professionals have had different opinions on whether the discussed condition subsequent would prevent a transfer to persons that knew, must have known or did not know about the right of first refusal. This question was resolved by the Supreme Court in a recent decision when it held: “If an obligation, the effect of which would have ceased due to the condition subsequent, is discharged before this condition has been fulfilled, its fulfilment is of no importance in relation to the obligation and the extinguishment of the right. Therefore, if the option holder exercises its right after the property was transferred from the owner to the potential buyer, the condition subsequent as per Section 2145 CC could not come into effect.”
Thus, the Supreme Court in the interpretation of its decision Ref. No. 33 Cdo 4737/2018 from 26.2.2020 protected the potential buyer from the reassertion of the owner’s property right among others in cases when the property was not duly offered to the option holder, or when the option holder did not respond to the offer.
Even though it was expected that the abovementioned decision of the Supreme Court related to the regulation of the condition subsequent due to the exercise of the right of first refusal would arrive, it still poses further risks. Among these is the probability that the termination of all conditions subsequent included in contracts or acts will be generalized, so the conclusion of conditions subsequent should be handled cautiously.
