Examination and Interpretation of the Prohibition of Relying on the Principle of Postponement of Incident in the Context of Inheritance for the Drowned and Those Trapped Under Rubble, with Careful Consideration of the Statements of Imami Jurists مقالة

خلاصة:

Legal scholars have relied on the principle of postponement of inheritance in various discussions, such as the discussion of inheritance regarding the drowned and those trapped under rubble. The correct use of this principle is contingent upon identifying its nature and the authority of the effects resulting from it. Although some have considered this principle invalid or categorized it as an instance of the principle of non-existence, its application to the rule of Istishab (presumption of continuity) is closer to the truth. Since in this principle, sometimes delay is proven in the components of time and sometimes delay relative to another incident is proven, an objection has been raised regarding the positive nature of this principle due to the rational nature of the title of delay relative to the Istishab of non-occurrence. It has also been stated that this delay conflicts with the principle of non-precedence of a subsequent incident and is ultimately lacking in Sharia validity. In this regard, we set out to examine the principle of postponement of inheritance regarding the drowned and those trapped under rubble and its application in positive law using a descriptive-analytical method based on library information. The research findings show that the certain degree of the principle of postponement of inheritance regarding the drowned and those trapped under rubble is the application of the rulings of non-occurrence until the time of certainty of occurrence, and the application of the rulings of occurrence from the time of knowledge of occurrence. Furthermore, the principle of postponement of inheritance regarding the drowned and those trapped under rubble does not hold meaning in a relative sense, and only absolute postponement is applicable; however, when the result of this principle is placed alongside knowledge of other components, the subject of the Sharia ruling is established based on customary understanding and delay is proven in a way. The status of Istishab as an indicator (Amara), the acceptance of the implications of Istishab even in the assumption of it being a practical principle (Asl Amali), and the basis of combination in the subjects of rulings are supporting factors for proving delay. Therefore, Article 874 of the Civil Code is in accordance with Sharia and the famous opinion of early jurists, although exceptions such as collisions, where the necessity for survival is not certain, have been emphasized in this research.