Explanation of Article 629
The article refers to the right of a creditor of any partner in the common property to object to the division of the common property without involving him; whether the division is consensual or judicial, whether it is a physical division or a liquidation division, and whether the partner's creditor is a personal creditor or a secured creditor.
The first paragraph clarifies that the creditor may object to the division of the common property either physically or by liquidation through sale at auction without involving him; this is to protect his rights so that his guarantees are not diminished, as it concerns him that the division is carried out without harming his interests.
The creditor's objection in judicial division is made by intervening before the court, in accordance with the provisions of the Shariah Pleadings System.
The objection in consensual division is made by notifying all partners, not just some, of his opposition to the division without his involvement. The system does not require a specific form or deadline for this objection; it can be made in writing or orally, and the burden of proof lies with the creditor. The objection is valid as soon as the creditor knows that his debtor has a share in common property, even if the partners have not yet initiated the division, and the creditor's right to object remains until the division is completed. Once the partners receive the objection, they must involve the creditor in all division procedures if they intend to divide the property among themselves.
If the partners do not involve the creditor in the consensual division procedures despite being notified of his objection to the division without his involvement, the division will not be effective against him without needing to prove the debtor partner's fraud or collusion with the other partners. However, if the creditor is involved in the division procedures, or is aware of them and does not intervene, or if the creditor does not notify the partners of his objection to the division without his involvement, the second paragraph clarifies that the division will be effective against him, and he cannot contest it unless there is fraud involved; because fraud makes the transaction voidable in favor of the party affected by the fraud, and this restriction applies to consensual division, as fraud is not conceivable in judicial division. The creditor's knowledge of the division is established once he is notified of it, whether by the debtor or any of the partners; for example, by being invited to participate in the division procedures.
The end of the first paragraph clarifies that creditors with secured rights, such as a mortgagee of the common property or a creditor with a lien, if their rights are secured before the filing of the judicial division lawsuit or before the conclusion of the consensual division, must be involved in the division procedures, without requiring them to object to the partners, otherwise the division will not be effective against them without needing to prove fraud in the division; they are treated like a personal creditor who has objected to the partners and was not involved in the division procedures.
Related To
Article 629
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The creditor of the owner of a property owned in common may object to the partition of such property or its sale at auction if he is not included therein by filing a petition with the court if the partition is judicial or by notifying all the owners in common of his objection if the partition is by agreement. The owners must allow said creditor to join in the partition proceedings; otherwise, it shall not be enforceable against him. In all cases, a creditor whose rights are established must be joined prior to filing the lawsuit for partition or prior to the owners’ conclusion of their agreement.
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If partition is completed, a creditor who did not join therein may not object thereto except in cases of fraud.