Statutory Pre-emption Right as Changed by the New Civil Code

Abstract

The right of pre-emption can be characterized as a legal relationship following either statutory or contractual provisions, that establishes rights and obligations between the entitled person (eligible person) and the obliged person (owner) as two parties to the relationship. The content of this relationship is first of all the legitimate right of the eligible person to be offered by the obliged person to buy a particular thing and the corresponding obligation of the owner to offer the thing if it shall be sold. The purpose of the pre-emption right is to secure a priority status of the eligible person as regards the potential acquisition of the subject of pre-emption right. The pre-emptive right may be established in particular through rules provided directly by the law. The law may establish pre-emption rights in various situations. Most often it is the right of co-owners by shares to buy the share or shares offered for sale by other co-owners. This right was dominating to the relationship of the co-owners by share until the entry into force of the Civil Code No. 89/ 2012 Coll. as part of a general regulation of co-ownership. Its infringement brought along relative nullity of the legal act on the transfer of the ownership share.This paper deals with two question connected to the pre-emption right that have been subject to modifications on the basis of the entry into force of the new Civil Code, Act. No. 89/2012 Coll. by 1 January 2014. First of all, it analyses the narrowed scope of the statutory pre-emption rights of co-owners by shares and its possible impact on their mutual relations in practice. Subsequently, the paper focuses on the conceptual change of the relative nullity of the transfer of property carried out in violation of the statutory pre-emption right and the procedural consequences thereof.