Comment to Article 304. Pledge of property in common ownership of the Civil Code of the Republic of Kazakhstan
The requirement of the commented article on the need for the consent of all owners to pledge property constituting common ownership follows from the general provisions of civil law on the disposal of property in common ownership - shared or joint, since the pledge presupposes the right of the mortgagee to dispose of the property that is the subject of the pledge - the sale and receipt of satisfaction from the value of the pledged property..
In accordance with the general provisions of civil law on common ownership, the disposal of shared or jointly owned property is carried out by agreement of all its participants (see commentary to Articles 212, 220 of the Civil Code). However, if the consent of all participants is assumed with respect to the disposal of jointly owned property, and each participant has the right to make transactions for the disposal of common property, then such a presumption does not apply to the pledge of such property, and the consent of all participants is required to make a transaction on the pledge of jointly owned property. as with the pledge of property owned jointly. This exemption is established by this article, which does not divide common ownership into shared and joint ownership and requires the consent of all participants in the pledge of any property owned in common. The possibility to establish specifics in the rights of disposal of participants in common joint ownership when pledging such property follows from clause 4 of Article 220 of the Civil Code (see comment).
Consent can be expressed either by drawing up a single document, such as a protocol, or by each individual. The only consent requirement in connection with the requirement of Article 307 of the Civil Code for the form of a pledge agreement is a written consent form (see commentary to Article 307 of the Civil Code).
The right to a share in both joint and shared ownership can be an independent subject of pledge (for the procedure for allocating shares in shared and shared ownership, see the commentary to Articles 218, 221 of the Civil Code).
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
