جستجوی مقالات مرتبط با کلیدواژه « تملیک معدوم » در نشریات گروه « فقه و حقوق »

The sale of a future property is a transaction in which the property does not yet exist at the time of the contract’s conclusion but will exist in the future. The property may be passing of ownership or an ascertained (i.e. definite and specific) object. This study investigated the latter type, that is, the sale of a future ascertained object. There are two obstacles to the validity of this contract. The first obstacle is the impossibility of ownership of nonexistent. The second obstacle is that this type of sale is uncertain (Bai' al-Gharar). However, from an analytical point of view, neither of the said obstacles can impair the validity of this type of contract because both obstacles can be overcome. In French Civil Code, making commitments concerning a future property is explicitly authorized. In English law, the sale of future property, which is a type of unascertained property, is not known as a transfer, but as an agreement to transfer. In the Iranian legal system, the legislator has not addressed this subject through a general rule. However, belief in the accuracy can be improved through foundations governing the legal system and some sporadic legal texts including Article 842 of the Civil Code. This study is conducted by means of a descriptive-analytical method.

The well-known Imāmī Shī’a jurists (Fuqaha) believe the voidance of the companies of Labour (Bodies or Abdan), Negotiation (Mufawadha) and Reputations (Wujooh). There are no absolute proofs or evidences to prove the voidance of these partnerships in the Holy Quran, Islamic traditions and intellectual judgment but only proofs such as ijmae (consensus), the possession of the nonexistent, the absence of proofs for validity and risky (gharar) of such transactions (Muʻāmalāt) has been cited. The Imāmī Shī’a jurists (Fuqaha) believe that the validity of these transactions (Muʻāmalāt) are proved by Sulh (peace) and Wakalah (Agency) contracts or other mechanism (solutions). The legislature has not mentioned these partnerships and legal authorities (decrees). With analyzing the evidences of the well-known Imāmī Shī’a jurists (Fuqaha) sayings and after evaluating its criterion, the author has reached to this result that the clarified proofs are not sufficient to prove their claim. But these contracts have been and are of the accepted and conventional legal acts among people and there is no certain reason for the voidance (annulment) of these companies and because of its generality (currency) of these transactions among individuals, the Imāmī Shī’a jurists (Fuqaha) should inevitably seek a consideration (deliberation) for the validity of these contracts. Although the attitude of the validity of these contracts is contrary to the saying of the well-known Imāmī Shī’a jurists (Fuqaha), but some of the contemporary Imāmī Shī’a jurists (Fuqaha) are proponents of this saying. From the view of the civil code of Iran, article 10 which determines the principle of freedom of contract or Liberty of Contract can strengthen or encourage the attitude of validity of such transactions.

The possibility of transaction of future property is studied in this article. The purpose of doing this paper is studying of the bases of nullity of transaction of future property and designing of the general rule for these transactions, and we were encountered to this question that why the famous of jurists and lawyers knew as nullity transaction of future property, and how much the given arguments are valid and also in what cases it is possible to know truth the transaction of future property under a general rule. The result was that transaction of future property has known as nullity mainly because of some Jurisprudential exemplum (called Revayat in Islamic jurisprudence) and the forbidden of belonging of possession of nonexistent and its uncertainty, while there are also some Jurisprudential exemplum indicating the truth of transaction of future property. Moreover, prompt possession is not the inherent prerequisite of possessive contracts and possession takes place after the emersion of the subject of contract. In addition, transaction of future property is not uncertain and should be known as truth, if there is conjecture of creation of the property in the future according to the normal routine of affairs. Therefore, the existence of subject of contract meanwhile of conclusion is not of the main conditions and general rule and is necessary only in the cases which the mind basis of the parties is on the transaction of existent property.