نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار گروه حقوق خصوصی دانشکده حقوق و علوم سیاسی دانشگاه علامه طباطبائی، تهران، ایران
2 کارشناسی ارشد حقوق خصوصی دانشکده حقوق و علوم سیاسی دانشگاه علامه طباطبائی، تهران، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction: The modes of acquisition of ownership (Asbāb al-Tamalluk) are among the fundamental topics in civil law, which, despite their great importance, have received less attention. Article 140 of the Civil Code of Iran, in stating the modes of acquisition of ownership, is drafted with an exclusive language, making it appear as if the legislator considers the creation of ownership to be confined to those specific instances. However, the existence of numerous other modes of ownership is inconsistent with the ostensibly exclusive nature of this article. Consequently, the position of the modes that create ownership—as the most complete real right and the most important proprietary right—remains ambiguous. This research seeks to clarify the reasons for the exclusive language of the modes of acquisition of ownership in Article 140 by examining sources aligned with the Iranian legal system. Furthermore, it aims to identify its types and classifications, and to reveal the origin of the introduction of this discussion into the Civil CodeMethods: This fundamental research, with a descriptive-analytical and comparative approach, studies various aspects of the modes of acquisition of ownership. Also, for data collection using the library method, it examines various legal sources within the legal systems of Iran and Egypt, as well as Imamiyyah and Sunni jurisprudence
Findings: The discussion on the Shari'a modes of acquisition of ownership has long been present in Imamiyyah and Sunni jurisprudence; so much so that some jurists have endeavored to explain these modes comprehensively—an indication that the enumeration of the modes of ownership has a clear precedent in jurisprudence. This subject is also observed in the Egyptian Civil Code under the title "Modes of Acquiring Ownership" (Asbāb Kasb al-Milkiyyah), which indicates the Egyptian legislator's intent to limit these modes; although the limited examples provided in this code are not considered complete either. Also noteworthy is the presentation of the types of modes of acquisition of ownership in Article 1248 of the Majallah al-Aḥkām al-ʿAdliyyah (The Ottoman Civil Code). Therefore, the limitation of the modes of acquisition of ownership is preceded by precedent, and Article 140 of the Iranian Civil Code was also enacted not due to a literary error, but consciously and in line with that previous practice; however, like them, it has not succeeded in limiting these modes and has omitted some instances. Thus, contrary to the popular opinion of jurists, the topic of the modes of acquisition of ownership cannot be considered merely a French import; rather, Article 140 of the Civil Code, like some other articles, is an adaptation drawn simultaneously from both jurisprudence (Fiqh) and French civil law.
A comparative study with the jurisprudence of the [Islamic] schools of law and Egyptian law reveals that there are numerous instances of modes of acquisition of ownership that the Iranian legislator has not addressed. However, in general, the modes of acquisition of ownership can be divided into three categories: Voluntary (Ikhtiyārī), Involuntary (Qahrī), and Fulfillment of Obligations Creating Ownership (Īfāʾ al-Tazammunāt Mūjidat al-Milkiyyah).
Voluntary modes include contracts (ʿUqūd) and unilateral dispositions (Īqāʿāt). Contracts creating ownership, in addition to the technical translative contracts (ʿUqūd al-Tamlīkiyyah al-Iṣṭilāḥiyyah), also include dower (Mahr), rescission by mutual agreement (Iqālah), and a resolutory condition (acting like a suspended rescission - al-Sharṭ al-Fāsikh ka-māthil al-Iqālah al-Muʿallaqah). Ownership-creating unilateral dispositions (al-Īqāʿāt al-Mumlikah) include appropriation of ownerless things (Ḥiyāzat al-Mubāḥāt), pre-emption (Shufʿah), rescission of a translative contract (Faskh al-ʿAqd al-Tamlīkī), retraction from a gift (Rujūʿ ʿan al-Hibah), and confiscation (Muṣādarah).Involuntary modes are created by operation of law or Shari'a and include inheritance (Irth), accession/annexation (Tabiʿiyyah), dissolution of a translative contract by operation of law (Infiṣākh al-ʿAqd al-Tamlīkī bi-ḥukm al-qānūn), and the ownership of a usurper over a usurped thing that has undergone a change in essence (transformation - al-Māl al-Maghṣūb al-Mutaghayyir al-Māhiyyah)
Fulfillment of obligations creating ownership itself falls into three parts: First, fulfillment of obligations arising from involuntary guarantee (legal/quasi-delictual obligations - Ḍamān Qahrī), such as returning the equivalent in case of loss or destruction of property (Radd al-Mithl fī Talaf aw Itlāf al-Māl). Second, fulfillment of legal obligations (al-Tazammunāt al-Qānūniyyah), such as alimony (Nafaqah) in case of delivery of the specific thing. Third, fulfillment of contractual obligations (al-Tazammunāt al-Taqāwuḍiyyah), such as fulfillment of the obligation in a contract of manufacture (ʿAqd al-Iṣtināʿ) where the construction of the product causes the ownership of the obligee (al-Mutaʿahhid lahu).
Conclusion: Despite the various instances of legitimate and legal modes of acquisition of ownership in different sources, providing a list, even if comprehensive, of these modes in the law is not feasible. Based on this, the existence of an article aiming to enumerate these modes is unnecessary and exemplifies legislative inflation (Ṭūrām al-Qawānīn - inflation of laws). Therefore, it is preferable to delete this article and leave the possibility of identifying these modes to the courts and legal doctrine. However, if the intention is to retain a list of these modes, presenting their general classification in the manner of the jurists is the best choice. Hence, amending this article as follows is proposed: "Ownership is obtained through all legal causes (Asbāb Qānūniyyah), including voluntary causes, involuntary causes, and the fulfillment of obligations creating ownership."
کلیدواژه‌ها [English]
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