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Purchase and disposal prohibitions
By:
Juan Bertomeu Vallès , Wednesday, December 29, 2004

Purchase prohibitions
The purchase made in contravention of any of the following legal prohibitions is null and void and therefore invalid. The purchase prohibitions affects:

a) The person who holds a tutelary position, in the course of the duties of guardianship, with regard to the assets of the person who is under his protection.  
b) The agent, with regard to the assets of whose administration or sale he is in charge of. Once the agent has sold the assets to a third party, this person can resell them to the agent. (This second act is valid, unless the existence of conspiracy or deception is proved.)
It is not applicable when the principal party sells to the agent personally or through an attorney, nor when the agent is provided with the express authorization of the principal, since it eliminates the raison d’etre of the prohibition; or when, at the time of the agent’s purchase, the mandate has been cancelled
c) The executors, with regard to the assets entrusted to their custody. The purchase of the assets by the executor is valid when the function has been already accomplished (formal delivery of the assets to the heir).
d) Civil servants, with regard to the assets of the Public Administration they are in charge of. The prohibition also reaches judges and experts who in any way intervene in the disposal.
e) Magistrates, judges, members of the Attorney General's office (public prosecutor), court clerks and officers, with regard to the assets and rights that are the object of litigation before the court.
This prohibition also includes the acquisition by cession. The prohibition also reaches the lawyers and attorneys with regard to the assets and rights that are object of litigation in which they intervene as professionals (the prohibition starts on the date of the summons to answer the demand, and finishes once the process is concluded).
The prohibition is not applied when they act in defence of their own interests, as well as when they have been ceased. Regarding lawyers and attorneys, this restriction includes the covenant of quota litis, an arrangement whereby the litigant and his advocate or attorney agree on a split or percentage of any settlement or damages paid as the outcome of litigation, in lieu of or in addition to agreed fees for representation. This  arrengement is prohibited by the spanish General Statute of the Legal Profession.
 
Disposal  Prohibitions 
The prohibitions of disposal suppose a limitation to the right of property. Because it affects one of the most important faculties of ownership, the Spanish Civil Law opposes its admission and the cases where it is accepted are very restricted.
Jurisprudence understands that as this prohibition is a limit to the most important right of the proprietor - the right of disposal - its interpretation has to be realised under restrictive criteria and bearing in mind the purpose intended by whoever establishes such a limitation.
In any case, the prohibitions of disposal have temporary character and have to be justified with a licit cause.
The prohibition of disposal also supposes the prohibition of mortgaging (nevertheless, the mortgage can be accepted by the Land Registry if it is agreed that it cannot be executed by non-payment of the credit or of its interests until the end of the term of validity of the prohibition of disposal).
The prohibitions of disposal affect the voluntary alienation, but they do not prevent the inscription of judicial executions, since the opposite would damage the principle of universal civil liability, which is a matter excluded of the principle of  the intention’s autonomy.
For example, it is possible to decorate a property subject to prohibition of disposal, although it is not possible to execute it before the expiry of the prohibition.
a) Legal prohibitions: The prohibitions of disposal established by the law, which without express judicial or administrative order have full enforceable effects, do not need separate and special inscription and produce their effects as legal limitations to the domain.
b) Judicial and administrative prohibition: They are object of an enforcement notice. They constitute a precautionary measure during a  civil proceeding of the power of disposition of the defendant with regards of those assets with such a provisional registration to protect legal interest.
The effect is the ‘closing of the Land Registry’ to all the acts or dispositions that the defendant realizes later over the caveated assets. For its cancellation the completion of the process in which they were decreed must be proved.
c) Voluntary prohibitions: The prohibitions of disposal imposed by the testator or donor in acts or dispositions of last will, marriage settlement, donations and some other acts, can be entered in the land Registry whenever the current legislation recognizes its validity.
With regards to the Prohibition of Disposal imposed in Testament, the testator can impose a prohibition of disposal whenever the prohibition is not perpetual.
If the prohibition of disposal is temporary, it is valid up to the limit of the second degree of relationship. It is also invalid if it is established in favor of a person who is not alive at the time of the death of the testator.

 
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