Contractual bans on alienating and encumbering property are not a new development. Taking the form of a simple obligation not to encumber or transfer an item owned by the debtor or another person and provided as security, this ban is important for the position of creditors, especially in cases where the debt is not secured. Understandings of this obligation have changed since the adoption of the new Civil Code (Act no. 89/2012 Coll., the Civil Code), which provides legal grounds for making this ban effective vis-a-vis third parties.
In order for the ban on transferring or encumbering property to take effect for third parties, it must be created explicitly as a right in rem. If this does not happen, then the obligation will only affect the contractual parties. The ban may only last for a definite period which is both proportionate and in the interests of the person being legal protected.
Bans on pledges over property are bound by the special condition that they must be recorded in the official securities register. A prohibition on creating pledge rights will affect any third party which knew about that ban.
The ban on transferring and encumbering property may be agreed on in a contract in the form of a notarial deed which the notary will then use to register the ban in the securities register. Alternatively, this can be achieved by presenting a general contract to the notary public along with an application to register the ban on pledges in the securities register.
When registering this ban, the attached receivable must be specified along with the legal grounds for its creation so that the registration does not excessively restrict those bound by the prohibition.