چکیده:
The Islamic legal system, relying on jurisprudential rules such as the Rule of Possession (Yad) and Istishab, deals with the regulation of social and economic relations. The Rule of Possession is based on the principle that an individual's current possession of property indicates their ownership, unless proven otherwise. In contrast, the rule of Istishab emphasizes the continuity of a previous state and preserves prior ownership as long as there is no definitive evidence of its change. The conflict between these two rules, especially in cases where a claim of prior ownership (Istishab) conflicts with current possession (Yad), has always been a subject of disagreement among jurists. Using an analytical-comparative method, this article examines the conflict between the Rule of Possession and Istishab in various fields such as ownership of movable and immovable property, transactions made in good faith and bad faith, public and endowment (Waqf) properties, and emerging issues such as digital data ownership. Additionally, the theories of jurists in facing this conflict, including the theory of prioritizing the Rule of Possession, prioritizing Istishab, and the theory of distinction based on the type of property or situation, are analyzed. The research results show that the conflict between Yad and Istishab occurs in various cases, from physical property to digital data. Jurists adopt different approaches depending on external clues, the type of property, the intention of the possessor, and the strength of the evidence. Generally, in cases where prior rights have been established with valid documents, Istishab is preferred; however, in environments of uncertainty and lack of evidence, the Rule of Possession is proposed as a practical solution to maintain social order. Ultimately, contemporary approaches attempt to create a balance between legal stability and the dynamism of transactions by combining objective clues and prior rights.
خلاصه ماشینی:
The conflict between these two rules, especially in cases where a claim of prior ownership (Istishab) clashes with current possession (Yad), has always been a subject of disagreement among jurists.
Using an analytical-comparative method, this article examines the conflict between the Rule of Possession and Istishab in various fields, such as ownership of movable and immovable property, transactions made in good faith or bad faith, public and endowment (Waqf) properties, and emerging issues like the ownership of digital data.
Generally, in cases where prior rights have been established with valid documents, Istishab is preferred; however, in an environment of uncertainty and lack of evidence, the Rule of Possession is presented as a practical solution to maintain social order.
The conflict between these two rules, especially in cases where a claim of prior ownership (Istishab) clashes with current possession (Yad), has always been a subject of disagreement.
In contemporary civil law, this conflict has manifested in cases such as disputes over usurped property, good faith transactions, and even emerging issues like the electronic registration of documents (Katouzian, General Rules of Contracts, Vol. 1, p.
Conflict in different time periods Long-term ownership: If the possessor (A) has maintained their ownership for decades, some jurists, by citing the customary passage of time, consider their Yad to take precedence over the Istishab of previous ownership (B) (Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, Vol. 4, p.
Generally, in cases where previous rights have been established with valid documents, Istishab is preferred; however, in an environment of uncertainty and lack of evidence, Yad is presented as a practical solution to maintain social order.
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