جستجوی مقالات مرتبط با کلیدواژه « وصیت تملیکی » در نشریات گروه « فقه و حقوق »

The murder of the testator by the heir in testamentary disposition (testament for disposition of personal property), while challenging and lacking in research background, raises the question of whether such a murder can deprive the legatee of taking possession of the bequest (legacy). Three jurisprudential views based on the investigations can be considered in this regard that the murder of the testator by the legatee has no effect on taking position of the legatee according to the famous view and the legatee is still the owner of the bequest (legacy). However, two other views, in a little detail, are based on the fact that murdering a testator by the legatee as in the case of inheritance would prevent the legatee from the bequest (legacy). The present article considers the famous theory acceptable by using a descriptive-analytical method and using library resources, while critically analyzing and evaluating the jurisprudential fundamentals of the proposed views and also considers the prevention of the legatee from the bequest more acceptable by arguing that on the one hand, no evidence that stipulates the prevention of murdering from testamentary disposition (testament for disposition of personal property) and the absoluteness of verses, traditions and principle as the main reason for the famous point of view, each of them can be undermined in some ways and does not have the authority to prove the famous point of view.

In a taking possession will, heirs of testator are forbidden to possess property that is subject of a will. There is no distinction, based upon different foundations, among reasons for such prohibition and under different foundations like transferring, appearance, and no need for an acceptance, the result is forbidding heirs from possession of property. The reason for above point is that a testator has an especial right over one- third of his property, therefore, till the time of rejection or acceptance of the will his legal heirs are not permitted to use the testator’s property. For such a limitation, there is no difference either the testator die or his property transferred to his residuary. Under this foundation that after dying a person his legal heirs becomes owner of the testator’s property, so it is possible to accept such a result for them in the case under discussion, since there many examples that a testator unable to transfer his ownership upon his property to a third person residuary. In all those cases, like conditional sale contracts and mortgage, a common factor for forbidden a testator is an implying conditions to save property or destroying it by the owner; and a seller would be able to recover the same property or has a right to return it to him by a buyer as well as a mortgager would be able to recover his money by selling the mortgage. In all those cases mentioned in above, a person who is obliged to keep a property itself or has no right to possess it. Because, possession of a property is a matter that is inconsistent with the main purpose of doing legal activities namely a passion either in a form of transferring or destroying it, or condition for saving a property directly or by implication. Under the “Imamiyyah” Jurisprudence, it is admitted that until the time of rejection or acceptance of a will by a residuary, those who are testators of a will have not any right to possess the property of a dead person; of course, this is not a rule that easily to accept it since it is in contradiction to rules of ownership and right of rejection to accept a will. In this article, it is tried to support a reason (s) for a prohibition of possession of a testator’s property against those above rules.

A will for waqf (Arabic: الوقف endowment of property) as one of the “wills” and legal acts which has been suspended to the death of a person has been paid attention to by the jurists and law scholars. But the nature of such will has been constantly disputed and they do not believe that there is no reconciliation between it and the wills of promissory (ahdi) and transfer of ownership (tamliki) but they think that because in the case of “a will” for waqf, transferring of ownership in relation to the testator’s property is occurred this category of “will” is placed under the third category i.e. a will for disposing off the property and besides “wills” such as a will for manumission (freeing slaves or a release from slavery) and ibra' (Arabic: ابراء waiver on the right of claim). But observing the present regulations in the two legal systems of Iran and Egypt, a will for waqf is counted as one of the instances of tamiliki wills. According to this type of will waqf for a property is enforceable just in the case of creation (making) of a will and without the need for an independent creation by the legatee (Arabic: موصی له al-mūṣā lahu) or legatees. In respect of being the legal entity in waqf assets (Arabic: موقوفه) in Iranian and Egyptian legal systems resulting independent assets, competence and the capacity of rights and duties for legal persons, as just the death of the legatee the asset itself extracts from his possessing -owning property- and transfer to the possessing of the legal person of waqf assets; therefore, a will for waqf with regard of transfer of ownership of testator’s property to the legal person of waqf assets is counted of a will of the transfer of ownership (tamliki).

The Possessory will of the deceased is indebted to one of the important issues in jurisprudence that is the subject of discussion. In this article, we have tried to examine the status of the testator's Possessory will and property and what is the jurisprudence and law approach regarding the debtor's inheritance option.

This is a descriptive-analytical article using the library method to investigate the question.

 

In this article, honesty and trustworthiness have been observed.

The heir's possessions in the estate must be in line with the deceased's religion in order to be considered legitimate and valid. The debts of the deceased do not belong to the heirs. In order for the estate to be ready to join the heirs' property, it must be liquidated, and the debts and financial obligations of the heir take precedence over the acquisition of the heirs.

The immersion of religion in the will does not prevent the cucumber from being transferred to the heir, although the money in which the cucumber is present is not transferred to the heir due to the existence of religion.Keywords: Inheritance, Will, Proprietary Will, Inheritance option clause, Debtor Dead

Knowing the effects and rules of credit beings depends on identifying their nature. The importance of nature is due to this and other factors such as non-possession and interference of legislators in matters of rulings and its referral to custom and also the inevitable conciseness of custom in some subjects, therefore the need for scientific effort and substantiated opinion of the doctrine is certain in identifying the legal nature. In this article, we examine the views of Professor Jafari Langroudi - one of the activists in the field of philosophy of beingsCredit and the nature of these creatures - we look at the tools of nature and the impact of these tools are studied to prove the nature of unilateral legal act of testamentary disposition, endowments and donation to be explained From his point of view, what are the means of knowing the nature and what effect do these tools have on the acceptance of unilateral legal act about mentioned institutions and denial of their contractual nature? One of the features of this research is that in this research, with more than one hundred and twenty references, more than twenty works of Jafari Langroudi have been cited.

There are clear definitions in Islamic religious jurisprudence and law to differentiate the contract from a unilateral legal act valid consequences, but there are also disputes on the topic between religious jurisdictions and lawyers in some legal affairs due to some similarities. The testamentary disposition, which means the testamentary disposition of real or personal property to another person all for free, is a legal matter that has been under dispute from past times. For the testamentary disposition, some accept its contractual nature, and some others admit its unilaterality by rejecting the reasons provided by the former side. Both sides have their own opinions, but here we aim to ascertain reasons for the unilaterality of the testamentary disposition or its entry into a contract in religious jurisprudence and law, concentrating on the opinion of Mohammad Jafar Jafari Langroudi. For this, we analyze the opinion of the two sides to scrutinize their theories, aiming to reach an optimal output, which is in favor of the unilaterality of the testamentary disposition in his opinion.

Apart from that “Possession Will” which known as unilateral or bilateral contract it accepted as returnable or revocable by testator in the statutes of the most state. But the views are different that the testator has right forfeited his returning of possession will from himself or not. In Iranian Civil Law and Imamiyeh Jurisprudence if this clause included from within will certainly unreliable. If this right forfeited concluded with from within bilateral contract some lawyers know it null because it is contrary to spiritual law and some of them knows it correct. in Egyptian Law this clause is null. In English Law because returning of possession will is counted as essential elements of will, it is order not merely right and to take consideration forfeited this right is impossible. This research to describe this right and present a comparative study with Egyptian and English Law for this respect that to earn common basis and choice view that has most conformity with parallel to statute and Imamiyeh Jurisprudence.

Bequest is considered among the general powers of disposition a person jots down before his/her death. Thus, it is compared to the fulfilled properties a person might have possessed during his/her lifetime. According to the custom and practice, a hidden mercy lies in the interior of this legal identity. Mercy is antonym to the word hostility which means doing or not doing an arbitrary action that deserves appraisal and it is taken for granted that the legator has bestowed the position because of his mercy in the time of composing his bequest. In other words, taking possession of the legated property after the legator’s death has been intended by the legator merely by the time of composing the bequest initially and may not be continuous. By taking a look at the jurisprudential background of legacy law and comparing it with the ruling civil law of the present legal system, we come across disagreements with respect to the nature a contract or a unilateral obligation of the above mentioned identity has, namely regarding ownership legacy, which has been utilized in the present civil law unchangeably. Thus, to frame the legal structure of this law, some experts and scholars have considered it as a contract, while others believe it to be a unilateral obligation. Evidently, offer vs. acceptance is an issue which is discussed under contracts, and acceptance would not be positioned in the structure of unilateral obligations as the legal structure devised in the present legal system would be different with respect to contract and unilateral obligation and the ruling government adopts the rules which are considered as general and clear. However legacy law contains regulations and rules which contradicts the general rules in some cases and the ruling conventional system over the contracts entails that legacy, either ownership legacy or pledge is considered as being unilateral obligation. Therefore, the present paper attempts to investigate the jurisprudential background of this law along with the set-out reasons by comparing it with the civil law which has not been paved by many. The authors of the paper will compare legacy with the general rules of contracts and will substantiate why complex concept of legacy rests on being unilateral obligation.

This paper has studied the principle of freedom in one sided (unilateral) contracts in law of Iran and imamiyyah Jurisprudence. The present research has confronted with this question if the principle of freedom in one sided (unilateral) contracts is accepted by the law of Iran and Islamic jurisprudence or not and to where the realm of free Will effectiveness is. To answer this question, it should be stated that one sided free-will is restricted to identified (specific) ones sided (unilateral) contracts (Iq’aa) in the realm of non-financial rights. But in the scope of financial rights and in the area of objective rights, the principle of freedom in one sided (unilateral) contracts should be carried out in the ownership of actions (neither forbidden nor recommended-mubah), but the ownership of third party property (the ownership of property is for another person) is specified to pre-emption (shufa’a). One sided conveyance (transferring property from one owner to another) is specified to Will (Wasiyyat) and it is not a common rule. In contrast, abandonment (the surrender, relinquishment, disclaimer, or cession of property or of rights) is from of real rights according to the rule. it is impossible the establishment of one sided obligation for himself and for the benefit of the other in personal rights and creating obligation for the loss of the other is specific to guardianship established by will but legal release of obligation Is accorded with the rule. Finally, it is suggested that the civil legislature specifies an independent chapter to the basic provisions of the validity of one sided (unilateral) contracts and common rules and determines rules and definite (identified) effects of one sided (unilateral) contracts.

Transfer of ownership is often accomplished by agreement of two free wills. Transferring the property to another with one will, and owning a property without the will of transferee are often not accepted in jurisprudence because they are contrary to independence and freedom of individuals. A deeper reflection in the opinions of jurisconsults shows that although there are express objection towards the transferring of ownership throught unilateral obligation, this is not nonconventional and we can see its influence in some subjects like testamentary disposition, ownership as a corollary condition, money given as a gift to a bride's mother and some other jurisprudence institutions. In some Iranian civil law writer's view (e.g. jurisconsult's views), civil law doesnt accept that one-sided will can primarily make ownership for one individual unless it is an exceptional case, but the extent this view is accepted in Iranian legal system is controversial. Investigating the views of scholars about the acceptance or rejection of transfer of ownership through unilateral obligation and also criticizing their reasons, this paper investigates the possibility of acceptance of such transferring in statutory law.

Defining a Testament as a contract or a Legal act wich has been made Just by one parti’es intention causes different Legal effects. This article discusses the legal nature of Testament in order to redefine it’s nature.Defining a Testament as a contract or a Legal act wich has been made Just by one parti’es intention causes different Legal effects. This article discusses the legal nature of Testament in order to redefine it’s nature.Defining a Testament as a contract or a Legal act wich has been made Just by one parti’es intention causes different Legal effects. This article discusses the legal nature of Testament in order to redefine it’s nature.