Reinvestigating the Ownability and Ownership of the Considerations in the Sale Contract from the Perspective of Imamiyah Jurisprudence and Law of Iran, England and US

• Published in: پژوهش تطبیقی حقوق اسلام و غرب Vol. 7; no. 3; pp. 25 - 52
• Main Authors: Parviz Bagheri, rezahosin gandomkar, Abdelgabar Zargushnasab
• Format: Journal Article
• Language: Persian
• Published: University of Qom 01-09-2020
• Subjects: imamiyah jurisprudence; iranian law; law of us and england; ownability; ownership
• ISSN: 2476-4213; 2476-4221
• DOI: 10.22091/csiw.2020.4808.1659

The value of consideration in the sale contract has been influenced by the social, economic changes and time and place and the teachings of the scholars in jurisprudence and Iranian law has a significant role in determining the meaning of the ownership. Ownership has no religious fact, but is a customary notion so we should refer to custom of time and place for its meaning at any time and in any place. However, the American and English legislators’ approach toward the ownership of objects are various. From the jurisprudence and domestic law’s viewpoint, things may have little and rare benefit, but this cannot be considered as a permission to make a sale contract in usual circumstances. While, according to the western legislator, such a thing can be regarded as valid in concluding the sale contract. Iranian law and jurisprudence are adherents of transmission of the ownership in all kinds of sales at the time of its conclusion. But, nowadays, this way cannot meet the requirements of the society and the application of legal mechanisms such as retention of the interest clause, time and sharing possession that exist in the American and English legal systems, with considering all the dimensions, is an issue that can be reinvestigated. The present study, through use of a descriptive-analytic method, presents a new reading of the ownability and ownership in the laws of Iran, England and US the result of which is that the Iranian legal system has to update its legal mechanisms to guarantee the rights of the parties. The findings show that ownership is one of the conditions for the validity of the sale, and custom is the criterion for the main and shared indicator in jurisprudence and Iranian law and the western legal system in determining ownership.