Document Type : Original Article
Authors
1
Doctoral student of Fiqh and Fundamentals of Islamic Law, University of Qom, Qom, Iran
2
Master of Science in Jurisprudence and Fundamentals of Islamic Law / Graduate of Qom Seminary
3
Graduated from the 4th level of Qom Seminary
4
Researcher at Qom Seminary
10.22091/dplic.2025.12474.1051
Abstract
In Islamic jurisprudence and the laws of Iran and some Arab countries, possession of public property within the framework of law and public order is one of the ways of ownership. There has been disagreement on the pillars of ownership with possession, and some have considered the intention to acquire as a spiritual element necessary in addition to possession, which is a material act. On the other hand, a group of jurists consider ownership with possession to be coercive. The main question of the present article is whether ownership in possession of public property is intentional or coercive? The findings of this research, using a descriptive-analytical and comparative method, show that the evidence of intent is not capable of proving the claim. Most of this evidence can be presented for both claims, and due to the conflict between the two groups of evidence, it falls apart and both groups of evidence are set aside. Citing the statement of Article 143 of the Iranian Civil Code, in addition to the fact that confiscation is desirable, also stems from the confusion between possession and restoration. On the other hand, four reasons have been cited for the compulsory nature of ownership in possession: the applicability of the narration "Lalid Ma' Akht" which states: "The share of the one who saw the bird is the same as seeing the bird, and the bird is the property of the one who took it"; the fact that possession is a cause in creating ownership, which is negated by doubting the condition of intention in the ownership of possession, the principle of no condition has been applied, and the conditionality of intention; the proportion of the essence of possession, which is based on domination and domination, with the compulsory nature of its effect and the way of thinking. The conclusion of the arguments of both views is that ownership is compulsory in the possession of public rights. In other words, it is sufficient that the property acquired is under the customary sovereignty of the possessor; not that possession, like inheritance, is purely compulsory. With this explanation, as stated in Articles 1212 of the Iranian Civil Code and 950 of the Egyptian Civil Code, the effect of ownership is also imposed on the ownership of a child who is distinguished and even insane; of course, assuming the intention of ownership as stated in Article 149 of the Iranian Civil Code, which is customary monarchy. The way of the wise also confirms the effect of ownership of children in removing permissible property from the forbidden.
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