VALIDEZ DE LA VENTA DE LA TOTALIDAD DE UNA COSA COMÚN REALIZADA POR UNO DE LOS COMUNEROS SIN CONSENTIMIENTO DE LOS DEMÁS: APLICACIÓN DE LA VENTA DE COSA AJENA A PROPÓSITO DE LA SENTENCIA DEL TRIBUNAL SUPREMO DE 28 DE MARZO DE 2012.

Abstract

The legal issue dealt with here is the same as in the Supreme Court's ruling of 28 March 2012: whether the sale of an entire item of jointly owned property by one of its joint owners without the others' consent is valid and good. Supreme Court case law, in the form of various rulings, has declared such sales void. The grounds: lack of proper object, since the sales agreement covers not only the thing, but also the transferred rights in the thing. On other occasions the grounds are that the buyer's and seller's shared belief that the thing belongs to the seller causes an error in consent. The most recent case law applies articles 397 and 1261 of the Civil Code and holds that disposal of the jointly owned thing by one of the joint owners entails an alteration of the thing that requires the consent of all the other joint owners. In this ruling the Supreme Court declares that, while the general rule is that such sales are void, an exception is made when, in view of the object of the agreement and the intention of the parties to the agreement, it is in order to apply the dogmatics of the sale of another's property. In such cases the sale is good on the grounds of the purely obligational, consensus-based nature of sales in Spanish law.