Civil Code > TITLE V. SUCCESSIONS 3

Chapter 3. Partition of successions

Section 1. Community of hereditary estate and application for partition

Art. 1060. –Community of hereditary estate.

(1) A succession shall remain in common between the heirs until it is partitioned.

(2) The rights of the co-heirs on the property of the inheritance which is in common shall be governed by the provisions of the Title of this Code relating to “Joint ownership, usufruct and other rights in rem” (Art. 1257-1277)

(3) Noting in this Article shall affect the provisions of Chapter 2 relating to the liquidation of successions and the provisions of the following Articles.

Art. 1061.- Sale or partition of particular things.

The co-heirs may not require the sale by auction nor the partition of a particular thing forming part of the property, still held inn common, of the succession.

Art. 1062.- Time of partition.

When the succession has been liquidated, each of the co-heirs may at any time require that the partition of the inheritance be effected.

Art, 1063.- Time limit for partition.

(1) Where the application for partition is made at a time which is not appropriate, the court may order that the community be maintained for a period not exceeding two years.

(2) Unless otherwise authorized by the court, the community shall be maintained where the manner of making the partition depend on the condition of the birth of a child who is merely conceived.

(3) Where necessary, the court shall in such case cases appoint a person to administer the property of the inheritance or certain property forming part thereof.

Art. 1064. Disposition or agreement concerning community.

(1) The right of the co-heirs to apply for partition may be excluded by the will of the deceased or by a contract concluded between the co-heirs.

(2) Any stipulation or agreement mentioned in sub-art. (1) shall be effective for not more than five years or for such shorter period as is fixed therein.

(3) Where no period is fixed or a period longer than five years is fixed, the

Stipulation or agreement shall cease to have effect at the end of five years.

Section 2. Collation by co-heirs

Art. 1065.- Principle of collation.

Any descendant of the deceased who accepts his succession shall bring into the succession the value of the liberalities which he has received from the deceased and which are not exempted from collation.

Art. 1066. Donation subject to collation.

(1) Collation shall be due for what has been disbursed for establishing one of the co-heirs, or for paying his debts.

(2) It shall be due for the dowry given to one of the co-heirs.

(3) It shall not the due for the expenses incurred for the education of one of the co-heirs.

Art. 1067. Exemption from collation.

(1) No heir shall be bound to collate liberalities which the deceased intended to make to him as a preference or in addition to his share or as exempt from collation.

(2) In the case of donations, an express clause is necessary to establish such intention.

(3) In t case of legacies, the intention of the deceased of exempting his heir from collation may be established by all means of evidence.

Art. 1068. Income or premiums.

(1) No heir shall be bound to collate liberalities which have been made by the deceased out of his income.

(2) Nor shall he be bound to collate the premiums which have been paid by the deceased to constitute an insurance in favour of the her.

Art. 1069.- Indirect benefits.

No heir shall be bound to collate the profits which he has been able to acquire from agreements or associations entered into between himself and the deceased..

Art. 1070.- By whom collation is due.

(1) Collation shall only be due by such descendants of the deceased who accept his succession.

(2) It may be imposed by the deceased on his other heirs.

Art. 171.- Status of heir acquired after the day of the liberality.

An heir shall be bound o make the collation notwithstanding that he as not heir presumptive of the deceased on the day when the liberality was made to him.

Art. 172. Representation.

(1) Whosoever succeeds in representation of another person shall collate the liberalities made to him personally.

(2) He shall collate the donations which the person represented by him has received from the deceased.

Art. 173. Heir who renounces.

Collation shall be due by an heir only if he accept the succession.

Art. 174. Effect of collation.

(1) For the purpose of forming the mass to he divided between the co-heirs, the value of the property which has been donated or bequeathed in legacy by the deceased and of which collation is due to the succession shall be added to the property left by hi,

(2) A co-heir by whom collation is due shall be deemed to have already received his portion of the succession to the extent of the value which he is bound to collate.

Art. 1075. Effect of collation limited to relations between heirs.

(1) Collation shall be effective only as regards the partition of the succession and the relations between the co-heirs there anent.

(2) It may not be required by the creditors of the succession nor b the legatees.

Art. 1076.- Principle of collation consists in taking less.

(1) Collation is made by taking less

(2) No heir shall collate more than the value to which he has a right in the succession.

(3) Any agreement made before the death of the deceased to the effect that collation shall be made in kind shall be of no effect.

Art. 1077.- Value to be collated.

(1) The value to be collated shall be that at which the property donated has been valued in the act of donation.

(2) Failing such valuation, the true value which the thing donated had at the time of the donation shall be collated.

Art. 1078.- Loss of the property donated.

Collation shall be made by the heir notwithstanding that the property donated may have perished or he may have ceased to be enriched by reason of the donation.

Section 3. Partition how made

Art. 1079.- Partition by whom made.

(1) A partition shall be effected by agreement between the heirs,

(2) Failing an agreement between the heirs, a plan of partition drawn up by the most diligent amongst the heirs shall be submitted to the court for approval.

Art. 1080.- Approval by the court. 1- Protection of an heir.

(1) The approval of the court shall be sought, under pain of nullity, when one of the heirs is absent or is not property represented.

(2) In such case, the nullity of the partition may not be invoked except by the person without whose concurrence the partition has been effected.

(3) The nullity may be applied for, under pain of loss of right, within the year after that such person has come to know of the partition and, in any case, within ten years from the death of the deceased.

Art. 1081.- 2. Protection of creditors.

(1) The approval of the court shall be sought when a creditor of one of the co-heirs makes an application to this effect before the partition between the co-heirs has been made.

(2) The creditor who makes such an application shall be heard in the proceedings relating to approve.

(3) The costs of such proceedings shall be borne by the creditor unless the approval has been refused by the court by reason of frau committed by the co-heirs.

Art. 1082. Rule to be followed.

(1) The partition shall be made in conformity with the provisions made by the deceased.

(2) Failing such provisions, it shall be made in accordance with the provision of the following Articles.

Art. 1083.- Valuation of property. – 1. Principle;

(1) The property placed in the shares of the heirs shall be valued on the day when the partition is effected.

(2) The valuation of the property shall be made by the heirs themselves.

(3) Failing agreement between them, the valuation shall be made by arbitrators selected by them or, if they do not agree on the appointment of such arbitrators, by arbitrators appointed by the court.

Art. 1084.- 2. Appraisement by experts.

(1) In the case of an appraisement of immovables, the report of the experts shall show the bases of the appraisement.

(2) It shall state whether the thing appraised can be divided conveniently and in which manner.

(3) It shall, in cases of partition, establish each of the shares which can be formed there from and their value.

Art. 1085.- Formation of shares.

(1) The shares shall be formed by the person chosen by agreement of the hers between themselves.

(2) Failing agreement, the shares shall be formed by an expert appointed by the court.

Art. 1086.- Rule of partition in kind.

(1) As a rule, a partition shall be made in kind, each of the heirs receiving some of the property of the succession.

(2) The inequality of the shares in kind shall be set off by the payment of sums of money.

Art. 1087.- How shares are made up.

(1) Without prejudice to the provisions of the following Articles, the heirs shall receive, as far as possible, shares made up in the same manner.

(2) The utmost care shall be taken to give to each of the heirs the things which are most useful to him.

Art. 1088.- Origin of property.

In the partition:

(a) the immovables which came to the deceased from predecessors in title in the paternal line shall be assigned to heirs of that line;

(b) the immovables which came to the deceased from predecessors in title in the maternal line shall be assigned to heirs in that line.

Art. 1089.- Non-Ethiopian heirs.

If some of the heirs is indebted towards the succession, his debt shall be placed in his share.

Art. 1090.- Debts of the heirs.

Where one of the heirs is indebted towards the succession, his debt shall be placed in his share.

Art. 1091.- Hypothecary debts of the deceased.

An heir to whom is assigned mortgaged property or to whom property is given as a pledge for debts of the deceased shall be charged with such debts.

Art. 1092.- Property which is difficult to divide.- 1. Principle.

If there is in the succession some other thing which can not be divided without serious inconvenience, and if the heirs do not agree as to who among them shall have that thing in his share, the thing shall be sold and the price divided.

Art. 1093.- 2. Sale by auction.

(1) The sale shall be made by auction where one of the heirs so requires.

(2) Failing agreement between the co-heirs, outsiders shall be admitted to such sale by auction.

Art. 1094.- Family objects.

(1) Family papers and objects which have a sentimental value may not be sold where any one of the heirs objects to the sale.

(2) Failing agreement between the co-heirs, the court shall, where appropriate, decide whether such objects shall be sold or allotted to one of the co-heirs.

(3) In the latter case, it shall give such directives as are required to ensure that such objects remain in the family.

Art. 1095.- Nature of rights to be divided.

(1) The provisions of this Section shall apply without there being need to make a distinction as to whether the deceased was the owner or the lessee or former tenant of the property forming part of the succession or whether he had any other right on such property.

(2) For the purpose of putting such provisions into effect, it is sufficient that, in the circumstances of the particular case, they can be put into effect.

Art. 1096.- Keeping community between several co-heirs.

(1) The provisions of this Section which give rights to an heir ma be invoked by several heirs if the latter have agreed to exercise such rights conjointly.

(2) No property may be allotted to several heirs conjointly, unless such heirs have given their explicit consent to such conjoint allotment.

Section 4. Relations between the co-heirs

After the partition

Paragraph 1. Warranty due by the co-petitioners

Art. 1097. – Reference.

(1) .In respect of the corporeal things placed in their shares, the heirs owe to each other the warranties which a seller owes to a buyer.

(2) In respect of rights and debts placed in their shares, they owe to each other the warranty provided for in regard to the case of an assignment of a debt by onerous title.

Art. 1098.- Amount of indemnity.

The amount of indemnity due shall be fixed according to the value of the thing at the time of the partition.

Art. 1099.- By whom indemnity is due.

(1) Indemnity shall be due by each of the co-heirs in proportion to the share of the succession which he has received.

(2) If any one of the co-heirs is insolvent, the part due by him shall be divided between the heirs in whose favour the warranty operates and all the other heirs who are solvent, in proportion to the share of the succession which each has received.

Art. 1100.- Right to have securities.

A co-heir to whom a sum of money is due by one of the co-heirs to set off an inequality in the value of shares or in whose share a debt the recovery of which is doubtful has been placed may require from the moment of the partition that securities be given to him to guarantee his rights.

Art. 1101.- No warranty.

(1) Warranty shall not be due where the eviction or defect complained of by the co-partitioner is due to his fault or derives from a cause subsequent to the partition.

(2) Nor shall it be due where in the act of partition it has been expressly agreed in regard to certain property that such property has been placed in the shares of one of the heirs without warranty.

Paragraph 2. Annulment of partitions.

Art. 1102.- Causes of annulment.

Without prejudice to the provisions of the following Articles, a partition may be annulled in the same circumstances as other contracts.

Art. 1103. –Property omitted.

(1) If, after the partition, some other property which forms part of the succession is discovered, a supplementary partition may be made in relation to such property.

(2) The partition previously made shall not be thereby affected.

Art. 1104. Concealment of property.

Where the property newly discovered was in the possession of one of the heirs who, in had faith, had concealed the existence thereof from his coheirs, such heir shall be deprived of his portion of the property so concealed.

Art. 1105.- Correction of partition. – 1. Case in which it takes place.

(1) A correction of a partition shall be made on the application of any of the persons entitled thereto where, by reason of an errouneous valuation of certain property, such person has received in all less than three-fourth parts of what he had a right to.

(2) A correction of a partition may also be made where a donation subject to collation has not been declared by the person who was bound to collate it in favour of his co-heirs.

Art. 1106.- 2. Time.

The right to apply for the correction of a partition shall be barred if not exercised within three years after the partition has been made.

Art. 1107.- 3. Effects.

(1) Where the court allows an application for the correction of a partition, it shall fix the amount of indemnity due to the applicant, the person by whom and the conditions on which such indemnity shall be paid.

(2) Where a partition is corrected in consequence of a donation subject to collation not having been declared in the partition as corrected, the co-heir who has received such donation shall be deprived of a value equal to that which he was bound to collate.

(3) The court may waive the application of sub-art. (2) where the co-heir proves his good faith.

Art. 1108.- Payment of indemnities.

(1) The indemnities due shall in all cases be fixed in money.

(2) The payment of such indemnities may be requested only from the co-partitioners of the person making the request, or from their heirs or legatees.

Art. 1109.- Action Pauliana.

The creditors of one of the co-heirs may only impugn a partition as having been made in fraud of their rights where such partition was made without them notwithstanding an opposition made by them.

Section 5. Rights of creditors after partition

Art. 1110.- Division of claim.

(1) The creditor shall divide his claim among the heirs, in proportion to the value of the share received by each, unless the debt due to him is indivisible.

(2) He may, however, avail himself of agreements made in the partition whereby a larger part or the whole debt is charged to one or more heirs.

Art. 1111.- Insolvency of one of the co-heirs.

In case of insolvency of any one of the co-heirs, his portion of the debt shall be divided pro rata among all the others.

Art. 1112.- Assimilation of legatees to creditors.

The legatees by singular title shall be assimilated to creditors of the succession as regards the applicability of Art. 1111.

Art. 1113.- Relations between the heirs.

(1) An heir who, after the partition, has had to pay a debt of the succession, shall have recourse against his co-heirs where he has paid more than the portion which should finally remain to his charge.

(2) With regard to such recourse, the rules laid down in the Title of this Code relating to “Contracts in general” shall apply in so far as they relate to surety ship (At. 1920-1951).

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