Kuwait Court of Cassation principle number 3875

A material defense is a defense that may change the outcome of the action. The court of merits must address it and express its opinion in a manner that answers it. - A co-owner in undivided ownership. The general rule is that he has the right to terminate the state of undivided ownership at any time, consensually or judicially. The exception. The existence of considerations calling for compulsory continuation of that undivided ownership pursuant to law or a legal disposition. Compulsory continuation of undivided ownership pursuant to a legal disposition for a term exceeding five years is impermissible. Article 830/1, Civil Code. - Partition becoming detrimental to the co-owners' interests. Its implication: the court may order continuation of undivided ownership for a period it determines, unless there is an agreement prohibiting a request for partition, or until a date later than the agreed date. Article 830/2, Civil Code. - Inferring the existence or absence of harm to the co-owners' interests from immediate partition. For the court of merits. The condition for this. That its inference be sound and based on what is established in the papers of the action. Example. - A litigant's maintaining that undivided ownership should continue because partition would cause him serious harm, and supporting this with documents. The judgment's nevertheless ordering termination of undivided ownership in a manner that neither addresses this defense nor constitutes a proper answer to it. Renders the judgment defective and requires its cassation. - 726 - Civil Procedure (2) Non-material defense - generally:-