نوع مقاله : مقاله پژوهشی
نویسنده
دانشیار گروه حقوق خصوصی دانشگاه قم
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Can the liberty of property be considered as a general and independent clause in the Sale contract? How do Shiah and Ahle Sonatand Iranian legal system deal with this problem? They answer to the problem variously: Some Imamieh scholars take it into consideration as a general and independent clause, but some scholars take it as a general but nondependent clause, and finally, it is not general and not independent clause in the third group’s point of view. This paper deals with the latter of the three viewpoints. Sunni scholars working on this topic question the originality of the subject, and their interpretation is based only on the condition that the property is fully owned, or having a full control over its delivery, or finally in the condition that the preventive rights are missing.The author believes that Specific evidence explaining the preventive rights (such as in Waqf or rent/mortgage), doesn’t represent the general clause; on the other hand, selling a non-free property has nothing against reasonability, and a reasonable man would not avoid such dealings; therefore, there’s no proof to refute it. As a result, there would be no room to accept the necessity of liberty of sale as a general and independent clause.
