جستجوی مقالات مرتبط با کلیدواژه « pre-emption right » در نشریات گروه « فقه و حقوق »

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.

The right of pre-emption presented in jurisprudence and statutory law is one of the causes of acquisition and an object of Article 140 of Civil Law. One of the main conditions for acquiring the right of pre-emption, which most jurists and the Civil Law assert, is transferring the share by one shareholder through a sale contract. The paper, at first, mentions the main conditions needed for acquiring pre-emption right and presents different views regarding these terms, and then explores the supporting documents of the famous view. There are some indications such as: considering the justification mentioned for this right in hadiths, considering the Holy Legislator’s (shāri‘) definite aim for this right that is the denial of harm, and the necessity for right legislation and prevention of fraud; which would lead to the conclusion that pre-emption is a general right that could be extended to other bilateral contracts.