خلاصة:
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.
ملخص الجهاز:
Re-examining the Condition of Property and Ownership in Sale from the Perspective of Imami Jurisprudence, England, and America 1 Date of Receipt: 98/07/09 - Date of Acceptance: 99/07/16 Parviz Bagheri Reza Hossein Gandomkar 2 Abduljabbar Zargoush Nasab 3 Abstract The value of the two considerations in a contract of sale follows the social and economic diversity of the time, and the requirements of time and place, as well as the practice of rational people (Sira al-Uqala) in Iranian jurisprudence and law, play a significant role in determining the ownership of things.
The final topic, which has been examined in detail, is the condition of the property and ownership of the two considerations ( عوضین ) in a contract of sale (bay') from a comparative perspective and finding common points and differences between the views of Iranian and Western jurists and legal scholars regarding the subject.
(Robert & Mann, 2002) It might be said that, given the characteristics of tenancy in common in American law, including unity of time, 3 unity of title, 4 unity of interest, 5 and unity of possession, 6 this type of ownership can be considered comparable to the elements of tenancy in common in jurisprudence and Iranian law.
While Imami jurisprudence and Iranian law hold that ownership transfers in all types of sold items at the time of the contract, the approach of Western legislators such as the US and UK is based on the application of more diverse legal institutions such as the retention of title clause in sale, and temporal and shared ownership, the application of which in Iranian law is subject to re-examination considering all aspects.
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