Authors:
Ayman Mohammed Hussein Nasser
Abstract:
The subject of this research is the issue. Sale of a properly Belongs to Another a Compartive Study under Positive Law & Islamic Jurisprudence.
The research includes a preliminary section where I stated the essence of sale in language, law & doctrine where I have compared among these three concepts.
In the first section, I’ve tackled the concept of sale in the positive law & Islamic jurisprudence, comparing between these two concepts. Then I’ve limited the range Sale of a properly Belongs to Another, determining what might be included in this sale or not, distinguishing it from a few other suspected systems.
In the second section, I’ve dealt with the issue of legal nature for the Sale of a properly Belongs to another in the positive law, discussing the theories said in this concern as follows:
1.The theory of cancellation;
2.The theory of absolute nullity;
3.The theory of relative nullity;
4.The theory of suspended contract;
5.The theory of annulment, for a special kind.
Then I dealt with the theories said in rooting the. Sale of a properly Belongs to Another according to the Islamic jurisprudence; such as:
1.The theory Sale of a properly Belongs to Another cancellation.
2.The theory Sale of a properly Belongs to Another stopping.
Then I compared between the two doctrines: the Islamic & legal in determining the lawful nature Sale of a properly Belongs to Another where I studied the rule of suspended contract & the rules of contract liable to cancellation; as well as which of the two contracts is more appropriate for the case Sale of a properly Belongs to Another.
In the third section, I researched the subject Sale of a properly Belongs to another where I started with determining the legal nature of real-estate sale in the positive law & Islamic jurisprudence, comparing between the two trends.
Then, I moved to limiting the nature of the lawful nature for the selling Sale of a properly Belongs to Another according to the positive law & Islamic jurisprudence, comparing between the two concepts, the lawful & doctrinal from the issue Sale of a properly Belongs to Another.
In the fourth section, I took the rules Sale of a properly Belongs to Another where I studied first the rules Sale of a properly Belongs to Another between the contracting parties; and the right of the buyer & seller in revoking the Sale of a properly Belongs to Another and the position of Islamic jurisprudence in this concern; as well as the extent of buyer’s right to claim compensation according to the two doctrines: the legal & Islamic; as well as the source of this compensation on the basis of the lawful & Islamic trends. Then, I took the cases of correcting the Sale of a properly Belongs to Another, sush as:
1.The lapse of buyer’s right to sue for an action-at-law against annulment by prescription.
2.The licensing of buyer for the sale.
3.The possession of buyer for the sale.
4.The possession of seller for the sale.
Then, I took the rules Sale of a properly Belongs to Another according to the true proprietor where I studied the issue of fixing or licensing the proprietor for the sale inscribed on his proprietorship. This needed at first studying the concepts of fixing & licensing according to the lawful & Islamic concepts; as well as the difference between the two terms in the shade of the two doctrines. And I moved afterwards to the hypothesis of not confirming the proprietor for the sale where in this supposition there were two relations for the true proprietor: the 1st, his relation with the buyer; and the 2nd, his relation with the seller. Yet, in the hypothesis of fixing the true seller for the sale, three results have emerged:
1.The validity of selling in the right of the proprietor.
2.The lapse of the buyer’s right to claim for annulment.
3.The relation between the true proprietor & the buyer.
Finally, I researched the rules of 3rd. Party’s Sale in the case of successive sales. Then, there was the end which included the results of the research and recommendations.