Explanation of Article 632
The article stipulates that each co-partitioner guarantees to the other co-partitioner the entitlement of the segregated property that falls into his share as a result of the division. The article sets four conditions for the entitlement guarantee:
The first condition: The entitlement must occur in the segregated share of the co-partitioner, whether the entitlement occurs in all or part of his share. However, the co-partitioner does not guarantee physical interference from others; rather, he guarantees interference based on a legal reason, such as when a person claims entitlement to the property that fell into one of the co-partitioners' shares or claims a real right over it, like a usufruct right or a personal right that necessitates a guarantee, and the interference must actually occur.
The second condition: The reason for the entitlement must precede the division, meaning the right claimed by others must exist before it. If it occurs after the division, there is no guarantee, such as when the property that fell into the co-partitioner's share is expropriated for public benefit after the division is completed.
The third condition: The entitlement must not be due to the co-partitioner's own fault. An example, by analogy to the entitlement guarantee in a sales contract, is if a claim of entitlement is raised against the co-partitioner, and he does not notify the other co-partitioners and defends alone, neglecting to invoke a defense that would lead to its dismissal, or if he acknowledges the right to others and the other co-partitioners prove that the other party was not right in their claim.
The fourth condition: There must be no agreement between the co-partitioners to exempt from the entitlement guarantee, meaning that the entitlement guarantee in division, like in sales, is not a matter of public order; it can be modified by increase, decrease, or exemption if it does not arise from the co-partitioner's own act or if he deliberately concealed it. However, to achieve equality among co-partitioners, the system has tightened the condition for exemption from the entitlement guarantee in division compared to sales. The article requires two conditions for the validity of the agreement on exemption from the entitlement guarantee in division: A- The agreement must be explicit and not implicit. B- The agreement must specify the exact reason for the entitlement from which exemption is sought; it is not sufficient to mention a general phrase without specifying the reason for the entitlement from which exemption is sought.
The article also explains the effect of the entitlement guarantee once its previous conditions are met, which is that the co-partitioner whose share is entitled can seek a guarantee from the other co-partitioners, each according to his share in the divided property, as detailed in the buyer's recourse against the seller for the entitlement guarantee in a sales contract, whether the entitlement is total or partial. The division agrees with the sale in that both are contracts of exchange. The article also states that what is considered in the recourse of the co-partitioner whose share is entitled against the other co-partitioners is the value of the thing at the time of division, not its value at the time of entitlement. Accordingly, he seeks recourse against the other co-partitioners for the value of the entitled thing at the time of division and for other compensations as detailed in the sales contract. If one of the co-partitioners is insolvent, his share is divided among the remaining co-partitioners, including the co-partitioner whose share was entirely or partially entitled.
Related To
Article 632
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If it is established that a third party has a right of ownership over all or part of a partitioned share in a property owned in common and such right arose prior to the partition, the co-partitioner over whose share the right of ownership has been established may invoke against the other co-partitioners the warranty of title, each in proportion to his share. Assessment of the warranty shall be based on the value of the partitioned property at the time of partition.
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A co-partitioner may not invoke the warranty of title if there is an agreement discharging the other owners in common therefrom in cases in which the warranty is invoked due to a reason explicitly stated in the agreement or due to a fault attributable to such co-partitioner.