نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The issue of taking possession (*qabḍ*) of the pledged property (*ʿayn marhūnah*) has long divided Imāmī and Sunnī jurists. Adopting an analytical-descriptive and comparative approach, this study examines three positions on the matter: possession as a condition of validity, as a condition of bindingness (*luzūm*), and the sufficiency of mere offer and acceptance without possession. A precise delineation of the locus of dispute shows that much of this disagreement is verbal rather than substantive: many seemingly opposing jurists in fact share the proponents' claim, merely framing it under the label "condition of bindingness," and the more accurate characterization of possession's role is as a constitutive element of the contract's cause rather than a "condition" in the technical sense. Through Qurʾānic evidence (the verse "*fa-rihānun maqbūḍah*"), the tradition "*lā rahna illā maqbūḍan*," transmitted consensuses, and the prevailing practice of jurists, the structural superiority of the view requiring possession becomes evident, a superiority reinforced by internal inconsistencies among opponents who, in their other works, inclined toward the same requirement. A purposive analysis shows this view aligns with the rationale for legislating the mortgage contract and with Article 772 of the Iranian Civil Code. Comparatively, among the four Sunnī schools, the Mālikīs stand alone in rejecting possession's effect, while the others concur on its significance. Building on the criterion of the pledgee's customary control (*istīlāʾ ʿurfī*), the study further addresses two emerging issues: the differing nature of possession in movable versus immovable property, and the feasibility of substituting official registration for physical possession in immovable mortgages. The findings indicate that the proponents' evidence is richer and more robust, and that jurists' practical consensus has solidified this view as preponderant.
کلیدواژهها English