Sale of the joint-property by one of the coowners: validity and potential effectiveness in rem

Abstract

The article analyzes the sale of the common good by one of the coowners. Mostly the jurisprudence considers that this contract of sale is invalid for the infringement of the arts 397 CC y 1261 CC. In the study, it is intended to refute the reasons why the jurisprudence decrees the nullity of the contract. Thus, the article 397 CC is analyzed, its origin, its precedents, its possible interpretations, and, in this way, it concludes that the provision should not be applied to the acts of legal disposal about the common good. Similarly, in the study is argued that the contract held by one of the coowners about the common good, in principle, is consented, has object and cause. The conclusion reached by this article is that the contract of sale of the common good held by one of the coowners is valid contractually and, if so desired by the purchaser, can serve of title deed, capable of transmitting the right of coownership left over the common good, that the coowner seller had.