نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The right of preemption (Shuf‘ah) constitutes an exception to the ordinary rules of sale, as it contravenes the principle of acquisition and transfer of ownership. Consequently, its application is impermissible except in cases explicitly stipulated by the Lawgiver (Shāri‘). Given that, according to the majority of jurists from both Sunni and Shia denominations, if the transfer of property to a third party by one of the two co-owners occurs through means other than sale—namely, through compromise (Ṣulḥ), gift (Hibah), or dower (Ṣidāq) —the other co-owner does not acquire the right of preemption. This raises the question: if the transfer of property takes the form of a sale but is of a benevolent (Iḥsānī) contractual nature, can the right of preemption be exercised? Considering the conditions for the establishment of the right of preemption, as well as its underlying rationale (Manāṭ)—namely, the prevention of harm and detriment to the co-owner—the initial impression suggests that the right of preemption may apply to benevolent contracts. However, through a deeper jurisprudential analysis of the nature of benevolent contracts and with due regard to the rationale underlying the exceptions to the right of preemption, the entitlement of the other co-owner to preemption appears unlikely. This is because the seller’s intention in concluding such a contract is solely to confer a benefit upon the counterparty, and the identity of the counterparty constitutes the primary cause of the contract. In such circumstances, the nature of a benevolent contract resembles that of a gift (Hibah) or compromise (Ṣulḥ), rendering the application of the right of preemption in benevolent contracts impossible. The Civil Code of the Islamic Republic of Iran briefly refers to the conditions of preemption in its definition of the right, without explicitly enumerating its exceptions. In contrast, the Civil Code of Afghanistan expressly addresses the exceptions to preemption by referring to non-negotiated sales (Bay‘ ghayr-mughābanah) and enumerating cases of compromise (Ṣulḥ), charity (Ṣadaqah), gift (Hibah), and dower (Ṣidāq).
کلیدواژهها English
