Reflections on the indivision co-ownership agreement (art. 1,320, § 1, of the Brazilian Civil Code 2002)

Abstract

This article analyzes Art. 1,320, § 1, of the Brazilian Civil Code, which establishes the so-called indivision co-ownership agreement, temporarily authorizing the parties to exclude the right to demand the partition of a jointly held property. This subject has received little attention in legal literature due to the perceived clarity of the rule, leading to a gap in the field of ownership in indivision. The aim of this article is to bridge this gap and, in doing so, promote further debate on the subject. To achieve this, we begin with some general considerations about co-ownership in indivision. Firstly, we compare the concepts of ownership of individual property, co-ownership, and communion. Then, we delve into the charac­teristics, legal nature, types, and forms of the ex­tinction of co-ownership. We subsequently move on to the indivision co-ownership agreement, exploring its concept, general provisions, and foundations. Finally, we present some questions – along with respective answers – about the indivi­sion agreement. These include discussions on the limits of freedom of contract, the period of the indivision agreement and its extension, the quorum for its creation, its format, its effects con­cerning third parties, its judicial dissolution, and its consequences in the event of judicial seizure.