Article 638 of the Saudi Civil Transactions Law
المادة 638 من نظام المعاملات المدنية · الفرع الأول: أحكام عامة لحق الملكية أولًا: نطاق الحق
The article gives a request for partition priority over a request for muhaya'a, even while muhaya'a is in force, and compels co-owners to enter into muhaya'a if one asks for it and the others refuse without requesting partition.
Official text (Arabic)
This article has not been amended since the law was issued.
1- إذا طلب أحد الشركاء قسمة المال وطلب الآخرون المهايأة، أو طلب أحد الشركاء القسمة أثناء سريان المهايأة؛ قُبل طلب القسمة.
2- إذا طلب أحد الشركاء المهايأة وامتنع الآخرون ولم يطلبوا القسمة فإنهم يجبرون على المهايأة.
This is the official Arabic wording, the only legally binding version. We do not translate the law itself; the explanation below is ours. Official source: Bureau of Experts at the Council of Ministers
Article 638 explained in plain English
This article deals with cases of conflicting wishes among co-owners of jointly owned property: some want to partition the ownership, while others want to settle for dividing only the use (muhaya'a).
Paragraph 1: Priority of the partition request
The request for partition is accepted in two cases:
- If one co-owner asks for partition of the property and the others ask for muhaya'a.
- If one co-owner asks for partition while muhaya'a is in force; an existing muhaya'a does not prevent a request for partition.
Paragraph 2: Compulsion to enter into muhaya'a
If one co-owner asks for muhaya'a and the others refuse it without requesting partition, they are compelled to enter into muhaya'a. A refusing co-owner cannot reject both muhaya'a and partition, which would leave the use of the property suspended.
In sum, the Law gives preference to partition whenever one of the co-owners requests it in the cases mentioned; if nobody requests it and muhaya'a is requested, those who refuse are compelled to enter into it.
This article is related to Article 637, which allows agreement on muhaya'a during partition proceedings and lets the court compel it where agreement is not possible, and to Article 639, which provides that muhaya'a does not end on the death of one of the co-owners.
Because the application of these rules may differ depending on the nature of the property and the facts of the dispute, consulting a lawyer who specializes in real estate matters is advised.
Practical example
Three co-owners in Khobar jointly own shops, and they have a muhaya'a under which each of them uses one shop. One of them decides he wants a final partition of the property. Under the article, his request for partition is accepted even though the muhaya'a is in force. Had he requested only muhaya'a and the other two refused without requesting partition, they would have been compelled to enter into it.
Translated from our Arabic explanation with machine assistance. For guidance only; it does not replace advice from a lawyer on your situation.
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Frequently asked questions about Article 638 of the Saudi Civil Transactions Law
If I ask for partition of the property and my co-owners ask for muhaya'a, which request is accepted?
The request for partition is accepted, under paragraph 1 of the article.
Can partition be requested while a muhaya'a is in force between co-owners?
Yes. If one co-owner requests partition while muhaya'a is in force, the request for partition is accepted.
Can a co-owner be compelled to enter into muhaya'a if he refuses?
Yes. If one co-owner asks for muhaya'a and the others refuse and do not request partition, they are compelled to enter into it.
More articles on Ownership, Co-Ownership and Partition
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1- يكون الحقُّ العينيُّ أصليًّا أو تبعيًّا. 2- الحقوق العينية الأصلية هي حق الملكية، وحق الانتفاع، وحق الاستعمال، وحق السكنى، وحق الارتفاق، وحق الوقف، وما يعد ك
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لا يحتج بفسخ العقد تجاه الخلف الخاص للمتعاقد إذا كسب حقًّا عينيًّا بحسن نية.
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يكون حارس البناء مسؤولًا عن تعويض الضرر الذي يحدثه تهدّم البناء كله أو بعضه؛ ما لم يثبت أن الضرر لا يرجع سببه إلى إهمال في الصيانة أو قدم في البناء أو عيب فيه.
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لكل من كان مهدَّدًا بضررٍ من شيءٍ معيَّنٍ أن يطالب حارسه باتخاذ ما يلزم من التدابير لدرء خطره، فإذا لم يقم باتخاذ هذه التدابير في وقت مناسب فلمن يهدده الخطر أن
- Article 371
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تصح هبة الشريك حصته في المال الشائع لشريكه أو لغيره عقارًا كان أو منقولًا، ولو كان الموهوب قابلًا للقسمة.
The texts are reproduced from the official website of the Bureau of Experts at the Council of Ministers for reference; where they differ, the officially published Arabic text prevails. This content is not legal advice.