جستجوی مقالات مرتبط با کلیدواژه « حق شفعه » در نشریات گروه « فقه و حقوق »

Pre-emption is a right based on which, whenever a partner sells his share, the other partner can acquire that share by paying the price to the buyer. Whenever the right owner is maḥjūr (incapacitated), it will be the guardian's responsibility to exercise or disregard it, according to the presence or absence of expediency. Given that exercising or disregarding the right can actually be in the presence or absence of expediency or ignorance about it, and considering the possibility of the consent or non-consent of the maḥjūr (after removing the incapacitation) with respect to the action of the guardian, several situations can be imagined in this field. The silence of the civil law in these cases and the need to refer to valid fatwas show the necessity of research on this issue. At the same time, most of the fatwas have been issued only with regard to the maḥjūr right, and their implementation will also cause significant problems. In this article, while preserving the maḥjūr right and emphasizing the client's rights and the need to observe the principle of the necessity of transactions, the said fatwas have been critiqued and based on the separation of responsibility of "guardian against the maḥjūr " and "the client against the maḥjūr ", it was concluded that the guardian's decision in exercising or disregarding the pre-emption is binding. However, in case of non-observance of the expediency of the maḥjūr, the guardian is the guarantor of damages caused to the maḥjūr due to non-observance of expediency.

One of the inalienable rights of man over his property is the right to transfer it. The owner's ability to take possession of any property is a general rule in all legal systems, which of course has exceptions. The purpose of this research is to investigate the approach of Shia, Sunni and civil law to the transfer of the right of intercession. This article has analyzed the right of intercession and whether it has the ability to be transferred using documentary sources. The findings of the research show that the right can be transferred if it has property, which was proved for the right of intercession.Another thing is that for the transfer of the right of intercession there are conditions such as the realization of the sale transaction, immovable property, and the existence of a partnership. Based on the results of the research, firstly, the right can be transferred if it has property. Secondly, the conditions for the transfer of the right of intercession prove that it cannot be transferred to another. Thirdly, there is no difference between the Shia and Sunni jurisprudence and the rulings of the civil law. Fourthly, regarding the transfer of the right of intercession to the heirs, with the explanation that a person's heirs are the continuation of his financial personality, therefore, it is not necessary that the voluntary transfer to foreigners and the forced transfer to inheritance are subject to a ruling, the transfer of the right of intercession to the heirs is possible. It is accepted.

One of the conditions for establishing preemption in Islamic jurisprudence and civil law is the definite ownership of the preemptor during the transaction of the copartner. One of the important challenges in Islamic Jurisprudence and legal system is that simply transferring preemptor before legal actions can be a proof of preemption forfeiture. The purpose of this article is to examine the issue that if the preemptor is the owner of the share during the sale of contribution not in cash, but before applying preemption, he transfers his share to another, the interference of the preemptor's knowledge and ignorance in the transaction of the partner's share, in preemption or the loss of preemption can be effective. This issue has been disputed among Islamic jurists and Iranian jurists, and the civil law does not have an explicit text to determine the law text on this issue. Descriptive-analytic method and use of library sources have been used in this research. The result of the present work, after reviewing and criticizing the opinions of Imamiyyah jurists and Arba'ah denominations and jurists and their reasons, is that if the transfer of the preemptor's share is done by sale and at the same time as the sale of contribution not in cash, the entire share will be transferred to another, this act of turning away the right is considered as one of the examples of implicit cancellation and preemption is canceled. On the other hand, if the preemptor is ignorant of the sale of contribution not in cash or if a part of his contribution transferred to another, his preemption still remains.

The Pre-emption Right is a financial right and one of the characteristics of a financial right is the ability to transfer this right. However, in preemption, the situation is a little different, because most jurisprudents and lawyers, due to the specific nature of the preemption right and referring to the basis of legislating the preemption right, which is avoidance of detriment, consider it non-transferable voluntarily. The present study shows that the study of the voluntary transferability ability of the preemption right, on one hand, requires the interpretation of avoidance of detriment as the basis of the preemption right; Because depending on interpretation of avoidance of detriment as avoidance of partnership or avoidance of a new partner, it will not be ineffective in its transferability; and on the other hand, requires examining whether the preemption right is for or against the Rule of Ownership and the Rule of Prohibition of Detriment (La Dharar). The approach of the present study is that accepting the Preemption as a right, which is considered a common point with Option, leads to support the rule of domination (Taslit) and accepting the theory of voluntary transferability of the preemption right, and on the other hand, paying attention to the basis of the preemption right, i.e., avoidance of detriment as avoidance of a new partner, reinforces the above-mentioned view.

According to the civil code, the right of pre-emption does not prohibit the purchaser from performing any proprietary act on the purchased share. However, Article 816 of civil code, states that the exercise of this right void the transactions of the purchaser in respect of the subject of pre-emption. According to the fact that the correctness of the contract from the beginning and its nullity after exercising the pre-emption right is exceptional in our law, it is necessary to determine its interpretation and principle by investigating the juridical literature of the issue in order to answer the essential questions that may rise on this issue. First, what is the condition of the proprietary right of the purchaser before and after the exercise of the pre-emption based on? Is the nullity of the contract in Article 816 of civil code used in its real meaning? If the right of pre-emption on the subject of pre-emption belongs to shafi, why will this right not prevent the purchaser from doing the proprietary act on the subject of sale? There are several points of views from lowers and jurisconsult in this regard such as nullity, voidable, being observed, cancelation and non-opposability. But the bases of these views are not determined. In the present study, after analyzing and criticizing the present views, we concluded that the right of pre-emption on the subject of sale belongs to shafi, but the sale of it by the purchaser is valid. Because the transition of the subject of sale doesn’t defect the right of pre-emption and the exercise of the right of pre-emption will cancel the sale and this rule is more compatible with the two parties of the sale and the real correctness of the contract.

One of the causes of ownership is the right of pre-emption; There are conditions for the realization of the right of pre-emption, which according to the well-known view of the jurists and the civil law, which is inspired by this view in this field, one of the conditions for the realization of the right of pre-emption is the immovability of property. There is no such consensus on movable property. Some jurists believe in the proof of the right of pre-emption in movable property and others do not believe in such a right in movable property. This study analyzes the views of jurists in this regard and examines the evidence and concludes that the right of pre-emption can be applied to all property, both movable and immovable. The reason why the jurists are more inclined to the right of pre-emption in immovable property is that the pre-emption right has been established to compensate for the loss, and considering that the loss is more lasting in immovable property, they consider the immovability of property as one of the conditions for realizing the right. Pre-emption is considered, but this case can not be a reason that the pre-emption right can not be applied to movable property, but, in some cases, pre-emption right is applied to movable property. Therefore, the immovability of property under the pre-emption right is one of the conditions for the realization of the pre-emption right, has no logical justification and is not compatible with the principles and arguments of the pre-emption right.

Pre-emption right enables the beneficiaries so that they can own the property subject to the right which is sold or is going to be sold. Studying this right in the laws of other countries can be heuristic in domestic law. This research is conducted through a descriptive-analytic method. Briefly speaking, pre-emption right in the common law legal system is divided into two types of rights namely "right of first refusal" and "right of first offer" which have legal or contractual origin. These rights are considered at the pre-contractual stage and despite the similar function with the concept of the right of ‘’shuf'ah’’ in domestic law, are fundamentally different it. The legal entity of "droits de preemption" in French law is similar to the "pre-emption right" in common law. The entity of "Vorerwerbsrecht" in German law is more close to the entity of right of "shuf'ah". In both entities, the right is created after the sale of the property to the customer, and with a little tolerance, they can be considered the same. The contract of right of shuf'ah and the contract of pre-emption right as in the context of the Common Law and Civil Law are valid in law of Iran.

Right of pre-emption is an exceptional right; and unlike the rule of possession, it constitutes the power to forcibly possess the sold common share. Among the prerequisites for holding pre-emptive right, which is provided for under the article 808 of the Civil Code based on the view of the renowned majority of jurists, is transfer of common share through “sale”.
This paper discusses the opinions on the said condition and analyzes the evidence in its favor, reviewing arguments in favor of such view as well as studying the relevant hadiths as the main relevant evidence. However, strengthening the principles of the non-majority view, this paper found the latter as the preferred opinion; the main finding of this research suggests that review of the relevant hadiths reveals that they don’t completely indicate the “validity of limiting of pre-emption right to sale” - the opinion held by the renowned majority of jurists - and that adopting a new view of the relevant hadiths, the limitation of pre-emption right to sale can be removed and the same may be extended to all kinds of non-transaction contracts for transfer of title on the grounds of customary law and public will.

Peace source and means of reconciliation and Tsalm and agreements and so-called peaceful expression of consent and Tsalm on something, whether owned by same with interest or waiver of religion or the right or otherwise, peace may or about fix The existing conflict or the avoidance of a possible struggle either in the deal or otherwise. This means that in each case the right between the two confused, or the dispute is located, or the aim is that the conflict could be avoided, a contract on this basis and forgiveness of mutual actually be peace, although the result Creating the right to move or reset it right. Peace of First Instance, which is based on Tsalm is an independent transaction and the sale and donation row and rent one of the contracts is specified. The effect of peace in relations between the parties and in relation to third parties can be both to the benefit and to the detriment of them.

The pre-emption of beneficiaries of endowment is one of the disputable issues in jurisprudence and law, and different views have been expressed about it, and civil law has also followed the dominant idea in this regard. In this regard, there have been three major ideas among jurisprudents: some believe in non-ownership of the beneficiaries of endowment on the properties of the endowment, so they don’t have pre-emption; another group believe that the pre-emption is an exception and it is applied in the cases where the property is shared between the two people, thus they have chosen an idea in between, that is, there is pre-emption only in cases where the beneficiaries of endowment is one; and finally, a number of other jurisprudents such as Sayyed Murtaza, based on the principle of no harm and the prophetic hadith, have proved this right for the beneficiaries of endowment. By reviewing the views of jurists and jurisprudents, this paper has attempted to consider the views of opponents and proponents about pre-emption for the beneficiaries of endowment. Ultimately, this paper has accepted the theory of the legal personality that has been chosen by Dr. Katouzian and the idea of Sayyed Murtaza, who emphasizes on the principle of no harm and prophetic hadith and close to the intention and the will of the perpetrator, and the affirmation of the right to seek justice by the endowment of the enemy. According to this research, despite the fact that the idea of Sayyed Murtaza may have some problems, it is closer to the intention and the goal of the endowment.

One of the important issues the general civil practice dealswith is the significant benefits of the joint ownership and its realizedeconomic results. The author has fresh ideas on regarding theownership share regime and right of possession in the orders of thecivil law in Iran. He offers good advices on the matter of exercisingthe right of possession and use by co-owners and the legal regulationswhich contain the legal relationship among the co-owners and alsothe way of obligation. He illustrates important trends that each coownerhas the right to possess and use whole common property,however, none of them shall exercise this right if it adversely affectsothers legal interest. He also emphasizes on the right of the co-ownersof disposition the property share. He documents the French approachon how they regulate this question