جستجوی مقالات مرتبط با کلیدواژه "rights in personam" در نشریات گروه "فقه و حقوق"

In a major division, rights and disputes are divided into in rem and in personam categories; one of the sources of the creation of rights, contracts is that Article 10 of the civil code which has accepted the rule of will in establishing them. In the field of in personam rights, as the effects of contracts are relative, this rule is absolutely applicable. But its application to rights in rem, other than rights envisaged in the laws and regulations, requires further scrutiny because of the absolute nature of these rights and their applicability to others, especially in view of the legal neglect of this title and Legal systems do not have a single position. For this reason, in the present study, we have tried to discover the legal position in Iranian law by conducting comparative study as well as fiqh investigation of the issue, while presenting economic analysis. The result is that despite the disagreements it must be stated that the principle of sovereignty of the will and consequently the freedom of contract in the creation of rights in rem is applicable to both French and Iranian law, unless the legislator restricts it to the material.

In the Roman-Germanic legal system, in a general classification and on the basis of separation of property rights from obligations, the property rights are divided into rights in rem and rights in personam. Owing to the structural significance of this classification, it is refered to spinal column of this legal system. Currently, however, by domination of material approach and the change occurred in the concept of property, this classification has been criticized and some claim of its disappearance. Having no legal basis, this classification has been extended to Iranian legal system, and has been accepted by most of the jurists and has affected many of the legal institutions. While in accordance with numerous reasons including adapting the theory of ownership of unsatisfied property and ownership of benefits, which constitute the essential and key institutions of Islamic law, existence of this classification is extremely doubtful and on the presumption of adaption of this classification, examples of rights in rem and chose in action are not the same in foreign law. In this respect, returning to traditional and domestic classification of "right and property" is suggested by the author.