نوع مقاله : مقاله علمی پژوهشی
نویسندگان
1 دکتری حقوق خصوصی دانشگاه اصفهان
2 دانشیار گروه حقوق دانشگاه اصفهان
3 کارشناسی حقوق، دانشگاه آزاد اسلامی سیرجان
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
In the conflict between the present possession and the former possession, the necessity of the rule of possession dictated that the current possessor was preferable; but what is considered and paid attention to in the current research is the conflict between the former ownership and the current occupation. Some consider the former ownership as priority and some prefer the current possession. The reason for those who voted in favor of the possessor is the priority of the presumption of possession over Istishab (the presumption of continuity) of the former ownership. Although this opinion is more consistent with the logical foundations of civil law; however, in its implementation, especially regarding immovable property, it will cause many practical challenges. By examining and analyzing the laws, the opinions of jurists and faqīhs, as well as the decisions issued by the judiciary, it seems that it can be said that the present possession always takes precedence over the former ownership; except in cases where the transfer of property requires the conclusion of a special contract (which is associated with special formalities). Of course, the authors mean only the formalities that are effective in the occurrence of the contract and not the formalities that are related to the possibility of invoking the contract or are considered to be of evidences in substantiation of claims. Acceptance of this theory can bring the issues related to evidences in substantiation of claims closer to jurisprudential foundations and of course, customary understanding.
کلیدواژهها [English]
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