Explanation of Article 636
Division is a consensual contract that, in principle, does not require a specific form for its conclusion; therefore, the article stipulates that division is a consensual contract that can occur by agreement between the co-owners of the common property, whether the agreement is made in writing or verbally. The article requires the following two conditions for the permissibility of division by agreement:
First condition: The co-owners must have full legal capacity; meaning they must be of sound mind and not legally incapacitated. Consequently, consensual division is not valid if one of the co-owners lacks legal capacity, such as a minor without discernment, or someone who has lost it, like an insane or mentally incompetent person, or someone with diminished capacity, such as a discerning minor or someone legally incapacitated due to prodigality or negligence. In such cases, division is only valid through the judiciary.
Related To
Article 636
The provisions governing the lease contract shall apply to the joint usufruct insofar as these provisions do not conflict with its nature.