1896de Book2 Chapter07 Title15

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

← Previous Page | Next Page →

Chapter VII. Particular Kinds of Obligations.

Title XV. Community of Ownership.

Section 741.

• If a right belongs to several persons in common, the provisions of 742 to 758 apply (i.e, community by undivided shares), unless it is otherwise provided by law.

Section 742.

• In case of doubt it is to be presumed that equal shares belong to the participants.

Section 743.

• [I] To each participant a fractional part of the fruits accrues proportional to his share.
• [II] Each participant is authorized to use the common object in so far as the joint use of the other participants is not thereby interfered with.

Section 744.

• [I] The management of the common object belongs to the participants in common.
• [II] Each participant is entitled to take any measure necessary for the preservation of the object without the consent of the other participants; he may require that they give their approval in advance for such a measure.

Section 745.

• [I] By a vote of the majority regulations for management and use corresponding to the character of the common object may be determined upon. The vote of the majority shall be reckoned according to the value of the shares.
• [II] Each participant may, if the management and use are not regulated by agreement or by a vote of the majority, demand management and use in an equitable manner, having regard to the interests of all the participants.
• [III] An essential alteration of the object cannot be voted nor demanded. The right of the individual participant to a fractional part of the emoluments proportional to his share may not be infringed without his consent.

Section 746.

• If the participants have regulated the management and use of the common object, the regulations made are effective both in favour of and as against all successors in title.

Section 747.

• Each participant may dispose of his share. The participants may dispose of the common object only as a whole and only when they are acting in common.

Section 748.

• Each participant is bound towards the other participants to bear the burdens of the common object and the costs of preservation, management and common use in proportion to his share.

Section 749.

• [I] Each participant may at any time demand dissolution of the community.
• [II] If the right to demand dissolution is excluded by agreement permanently or for a time, the dissolution may, nevertheless, be demanded if a grave reason exists. Under the same conditions, if a term of notice is fixed dissolution may be demanded without observance of such term.
• [III] An agreement whereby the right to demand dissolution is excluded or limited contrary to these provisions is void.

Section 750.

• If the participants have excluded for a time the right to demand dissolution of the community, in case of doubt the agreement becomes void on the death of one of the participants.

Section 751.

• If the participants have excluded permanently or for a time the right to demand dissolution of the community, or have fixed a term of notice, the agreement is valid both in favour of and as against all successors in title. If a creditor has levied judicial attachment on the share of one participant, he may demand dissolution of the community without regard to the agreement, unless his title in the debt is only provisionally executory.

Section 752.

• The dissolution of the community is effected by partition in kind, if the common object or objects can be distributed without diminution of value into similar parts proportional to the shares of the participants. The distribution of equal parts among the participants is made by lot.

Section 753.

• [I] If partition in kind is impossible, the dissolution of the community is effected by sale of the common object under the provisions relating to sale of pledges; in the case of land, by compulsory auction and distribution of the proceeds. If alienation to a third party is not permitted, the object shall be sold by auction among the participants.
• [II] If the attempt to sell the object has no result, each participant may demand a second attempt; he shall, however, bear the costs if the second attempt fails.

Section 754.

• The sale of a common claim is permissible only if it cannot as yet be collected. If collection is possible each participant may demand common collection.

Section 755.

• [I] If the participants are liable as joint debtors for an obligation which they, in conformity with 748, have to fulfil in proportion to their shares, or which they have incurred for the purpose of fulfilling such an obligation, each participant may, on the dissolution of the community, require that the debt be satisfied out of the common object.
• [II] The claim may also be enforced against all successors in title.
• [III] Where a sale of the common object is necessary for the satisfaction of a debt, the sale shall be made in the manner provided for by 753.

Section 756.

• If one participant has a claim against another participant which is based on the community he may, on the dissolution of the community, require satisfaction of his claim out of the part of the common object accruing to the debtor. The provisions of 755, pars. 2, 3 apply.

Section 757.

• If, on the dissolution of the community, a common object is allotted to one of the participants, each of the other participants for his share shall give a warranty against defects of title or of quality in the same manner as a seller.

Section 758.

• The claim for dissolution of the community is not subject to prescription.