Explanation of Article 620
The first paragraph stipulates that a partner in common property has the right to dispose of their share, such as by selling or gifting it. They also have the right to use it, such as enjoying a shared farm among several partners. Additionally, they can exploit their undivided share without the permission of the other partners, provided that it does not harm their rights. The validity of the disposal, exploitation, or use, and its enforceability against the other partners, does not require their permission; because the partner's right in their share is a real right, allowing them direct authority to use, exploit, and dispose of it without mediation from anyone. This is valid, and the partners have the right of pre-emption under its conditions. However, this permission for the partner in their share in the common ownership is restricted by not causing harm to the other partners. Therefore, a partner cannot sell an undivided share of the common property without the permission of the other partners, and the sale is not enforceable against them; because this would harm their rights, as the undivided part sold might be the best part of the common property. Thus, the partner's disposal of the common property has two forms: the first form is disposing of the undivided share they own, as if they own a third of the property and sell a third of it in common without specifying an undivided part of the property. This disposal is permissible for the partner to conclude even without the permission of the other partners, and they have the right of pre-emption. If the partner disposes of their share by sale or gift, the transferee, whether a buyer or a donee, replaces the disposing partner in the ownership of the common share and becomes the partner in the common property instead of the disposing partner. The disposal might be to the partner themselves, resulting in their sole ownership of the common property. If the property is common between two people and one sells their share to the other or gifts it, the buyer or donee becomes the sole owner of the entire property, and their ownership is individual. The second form is the partner's disposal of an undivided part of the common property, which is not enforceable against the other partners without their approval, as it infringes on their rights. The second paragraph clarified the rule of the partner's disposal of an undivided part of the common property, but this part was not their share upon the division of the common property. The transferee will obtain the part that devolved to the disposing partner upon division. For example, if two people share a piece of land as common property, each owning half, and one sells half of the land from the southern side, their sale falls on an undivided part of the land and not in common. If the land is divided between the partners and the disposing partner receives the northern half, the buyer's right transfers to them. However, the buyer has the right to request annulment if they were unaware that the partner did not own the part they disposed of as undivided at the time of the contract, as they would have made a fundamental mistake regarding the subject of the contract. This aligns with the general rules as stipulated in Article (57). If the buyer knew that the partner did not own the part disposed of as undivided, they do not have the right to request annulment and own what devolved to the partner upon division. This ruling is an exception to the general rule established by the system in the sale of another's property, which grants the buyer the right to request annulment unconditionally, even if they knew that the seller was selling another's property. If the partner sells an undivided share of the common property, they have sold their own and another's property, as each part of the property is subject to the partners' rights. The principle is that the contract is subject to annulment for selling another's property unconditionally, even if the buyer knew. However, the system deviated from this ruling and decided that the right to annulment is not established for the buyer unless there is a defect in the will and they were unaware that the seller did not own the undivided part they sold as individual property. The reasoning is that the seller has a semblance of ownership in the undivided part, so the entire sale is not of what they do not own. Consequently, the ruling that the contract is subject to annulment should apply to what they did not own, but since this cannot be distinguished because the ownership is common, the validity of the contract prevails, and the buyer cannot request annulment of the disposal.
Related To
Article 620
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Each owner in common may dispose of, exploit, and use his share without the consent of the other owners in common, provided that such disposition, exploitation, and use does not prejudice their rights.
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If the disposition of an owner in common involves only an apportioned part of the property owned in common that did not become part of his share upon partition, the assignee’s right shall be transferred as of the time of the disposition to the part accrued to the assignor by way of partition. If the assignee is unaware that the assignor is not the owner of the apportioned part of the property at the time of the contract, he shall have the right to invalidate the disposition.