چکیده:
In the existing regulations, the harim (privacy) has a special function. Concerning the subject of the privacy, there are different regulations which each of them has used the privacy in according with the nature of its subject. Since in the different laws, the legislator has not followed a similar procedure, the legal nature and foundation of the privacy has remained vague. In articles 137 and 138 of the civil code, based on the famous jurisprudents` approach, the extent of some harims has been emphasized, while in other regulations, the famous theory has sometimes been accepted and, in some cases, has not been followed by reason of the necessity. In addition, in Article 136, the basis of the privacy is completeness of profit, and article 139 is to prevent the loss which the logical aspect of the combination of these two mentioned articles has been doubted. Since in the case of ambiguity of the legal regulations, a judge is obliged to infer the judgment of the issue by reference of the valid jurisprudential sources, it can be said that according to jurisprudential principles and criteria, the basis of the benefit perfection is to consider possession of the owner`s privacy and without taking an account of the other estates, or owners and privacy; but the foundation of preventing the loss is raised in the event that there is another right which in the case of conflict between completeness of benefit and loss, the rule of la zarar (there shall be no loss and damage in Islam) is made a priority.
خلاصه ماشینی:
In Articles 137 and 138 of the Civil Code, following the famous view of jurists, emphasis has been placed on the measurement of some Harims; whereas in other regulations, sometimes the famous theory has been accepted and in some cases, it has been deviated from due to necessity.
Since in case of ambiguity in legal regulations, the judge is obliged to infer the ruling of the issue by referring to authoritative jurisprudential sources, it can be said: based on jurisprudential rules and principles, the basis of the perfection of usufruct, considering the property owner of the Harim, is without regard to the properties or owners or the Harim of others.
But according to the apparent statement of Al-Khiraqi, the Harim is considered the property of the owner of the river; due to the Prophetic narration6 which stated: If someone revives unowned land, that land falls under their ownership" (Ibn Qudamah, 1404 AH: Vol. 6, p.
Foundations of Harim in Jurisprudence Two different foundations regarding Harim are observed in jurisprudence and, consequently, in legal texts: the majority of jurists have considered the foundation of Harim to be the perfection of use for the property owner; in contrast, another group has justified it based on the principle of "la darar" (no harm).
Some have said that apparently Art. 138 could be a supporter of the aforementioned reconciliation, because this article considers the determination of sizes in three specific cases to prevent harm; therefore, the Harim mentioned in Article 136 is considered an accessory property, and its limits are restricted to the perfection of use; meaning a Harim that is necessary for unloading, placing the water wheel, and other necessary equipment for other matters.
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