Article 1361

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 9761/2555 (2012)

   The consent of all co-owners required by section 1361 paragraph two may be given by implication. A co-owner who knew for some twenty years that another had registered the land in his sole name and mortgaged it but never objected, who negotiated with the creditor to reduce the debt, and who attended the auction on the mortgagor's behalf, is taken to have consented, and the mortgage binds him.

   The applicant owned a one-seventh share in the two disputed plots, but the defendant, as administrator of the estate, had registered them in his own name alone and mortgaged them to the plaintiff, and neither the applicant nor the other heirs objected. The applicant and his siblings had told the plaintiff they did not mean to cheat it; after the plaintiff sued, the applicant helped negotiate a reduction of the debt which led to a compromise; and when the land was seized and auctioned he attended the auction on the defendant's behalf. Over some twenty years he knew of the mortgage and never objected, which showed he intended the defendant to hold himself out as sole owner and consented to the mortgage. The mortgage therefore bound him under section 1361 paragraph two, and he could not have his share excluded from the auction.

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2. Arrêt de la Cour suprême n° 960/2552 (2009)

   A co-owner's sale of the whole co-owned property without the other co-owner's consent is not void: it binds only the seller's own share, so the buyer and the non-consenting co-owner become co-owners in equal shares in every part of the property. The buyer cannot then evict the co-owner, and the co-owner may have the sale set aside so far as it concerns her share.

   The joined plaintiff and the defendant bought the land and townhouse while married and later registered a divorce. The agreement on the back of the divorce register did not give the whole property to the joined plaintiff; it said only that once the instalments were paid he would transfer his own share to the defendant. With no agreement dividing the marital property, section 1533 applied and each took half. When the joined plaintiff sold the whole property to the plaintiff, his sister, without the defendant's consent, the sale bound only his own half even though the plaintiff bought in good faith. The plaintiff and the defendant therefore became co-owners in equal shares in every part of the property, so the plaintiff could not evict the defendant and the defendant could have the sale set aside so far as it affected her share.

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