Author
ACAR, Betül
Publication Place
University of Afyon Kocatepe -
University of Afyon Kocatepe
Subject
Islamic law, Property
Type
kitap
Language
ara,eng
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2757-8399, EISSN: 2757-8399, DOI: 10.52637/kiid.1173438
Record ID
cdi_doaj_primary_oai_doaj_org_article_7d5091bfd0b7456c9478a4713925d05b
Library Location
DOAJ Directory of Open Access Journals
Notes
The right to property and, in this context, the limits of one's authority to dispose of one's property have long been on the agenda of jurists. Since the right to property is considered as the broadest real right that a person has on his property, the main thing is that this person can dispose of his property as he wishes. However, in social life, there are many situations where the rights of one person conflict or are intertwined with the rights of others, and these situations may exceptionally require the restriction of some rights and powers. Although private rights are extremely strong in the theory of fiqh, the necessity of limiting these rights in cases of necessity, both in terms of private law relations and public interest, has been one of the basic acceptances since the classical period when fiqh was established. In this context, the social life rules that a person must follow when using his property and the duties assigned to him regarding his property are discussed in detail under certain headings in the literature. One of these is the obligation to pay zakat, and according to jurists, it is not possible to get rid of this obligation. Although it is accepted in fiqh that worship is essentially based on volunteering, mujtahids made an exception for zakat due to its socio-economic function. For this reason, it was deemed necessary for the authorities to collect zakat even if the person does not want it. Another example that limits a person's disposition over his property is alimony. Mujtahids considered alimony as an obligatory duty for all men in family life. For this reason, some mujtahids thought that in cases of necessity, a woman has the authority to sell her husband's property to meet the needs of herself or her family. Undoubtedly, this is a very powerful power that restricts a person's disposition over his property. Principles regarding wills are another type of restriction placed on a person's power to dispose of his property in favor of others. In Islamic law, it is important to protect the relations of relatives with each other. Financial problems often carry the danger of disrupting social relations, and in fiqh, this risk was intended to be prevented by two basic rules: Not making a will to the heirs and prohibiting bequeathing more than one third of the inheritance to people other than the heirs. Another reason that restricts a person's free use of his property is the right of pre-emption, that is, curfew. Şüf'a is the right that a person who owns a certain immovable property has to acquire a share or another immovable property that does not belong to him. This right is valid even if the property owner does not want it; Even if the person has sold his property to someone else, the rights holder's right to cancel the sale is reserved. Another group of restrictions is related to debts, which are; It is a state of indebtedness and bankruptcy in which the debtor is not inclined to pay his debt. In such cases, most jurists have said that it is possible to prevent transactions on the debtor's assets in order to protect the rights of the creditor. Another example that limits a person's disposal over his property is a contract that provides a property as in-kind security against a receivable and a pledge in the sense of the property that is the subject of this agreement. Most jurists have tended to restrict the debtor's dealings with his mortgaged property. For example, some of them said that the debtor cannot sell his property without the creditor's permission. Another situation that restricts one's disposal of one's property is stockpiling/black marketing, that is, slander, in order to raise prices and make more money. Normally, the concept of free economy was adopted in Islamic law and everyone was allowed to trade freely without official and fixed price tags. However, in cases that would cause trouble in the market, such as stockpiling, jurists said that prices could be intervened to protect the public. Some of them even stated that the stockist's goods could be forced to be sold. Finally, rules regarding neighborly relations and the use of common areas also limit a person's disposal of his property. One of the aspects of these rules is easement, which is the right to use someone else's property for a specific purpose. For example, a neighboring homeowner may have to cross one person's land, or one neighbor may need to run a water supply across another person's land. In such cases, the neighboring land owner has some legal rights over someone else's land. An example of prohibitions on the use of common areas is that a person should not add doors or windows to his/her own home and not allow them to spill over into the public area. In this study, all these views that limit a person's disposal of his property in favor of others have been tried to be determined by making use of the prominent works of classical fiqh literature. The property right and its limits have been on the agenda of jurists for a long time. In social life, there are many situations in which the rights of a personal conflict or intertwine with the rights of others. In the fiqh (principles of Islamic judisprudence) doctrine, even though private rights are substantial, the necessity of limiting the rights of an individual on his property, both for individual private law relations and public benefit, has been one of the basic acceptances since the classical period when fiqh was established. In this context, the rules of social life that a person must comply with while using his property and the duties assigned to him about his property are discussed in detail under specific topics in the literature. One of them is the obligation of giving zakat. Regarding faqihs (jurists) opinion, there is no choice but to get away from this obligation because of its socio-economic function. Another example that limits a person's disposition on his/her property is alimony. Mujtahids (jurists) found alimony compulsory in family life for all men. Thus, some of them thought that in some situations, the wife even has the authority to sell her husband's properties to meet her or her family's needs on his behalf, even if he didn't want. No doubt, this is a very strong authority that restricts a person's disposition of his rights. Rules of will are other restrictions on property rights in favor of others. In Islamic law, it is important to protect relations of relatives with each other. Mostly, monetary relations are prone to spoil their social relations, therefore in the fiqh doctrine, this was wished blocked with two basic rules: Not making a will for inheritors and banning making a will for anybody more than one-third of heritage. Another example that restricts a person's free use of his or her property is pre-emption. This right is valid even if the other property owner doesn't want it. Even if he/she has sold his/her property to another person, the right owner reserves the right to cancel the sale. Another group of restrictions is about debts: indebtedness which the debtor isn't prone to pay debt and bankruptcy. In this kind of circumstance, in terms of protecting rights of creditor, most of the faqihs said it is possible to block debtor's acts of his or her properties. The other is a pledge. In fiqh doctrine, most of the faqihs were prone to restrict actions of the debtor on his or her pledge property. There is another thing that caused use restriction on someone's property is stocking goods to get prices higher and make more money. In situations such as the black market, which would put the market in trouble, jurists favored the application of price tags in order to protect the public. Some of them even said that the stockist could be forced to sell their goods. Finally, neighborhood relations and rules regarding the use of common areas also limit the person's disposition on his or her property. The result of the first of these is called easement which is the right to use another's property for a specific purpose. For example, the neighboring landlord may have to cross over the land or a water source may need to be passed between the neighbors. An example of the rules regarding the use of common areas is the requirement that when making additions such as doors and glass to one's own home, it required not to overflow them into the public space. In this study, all these opinions that limit one's property right in favor of others have been tried to be determined by making use of the prominent sources of classical fiqh literature.
Detaylı Başlık
Klasik Fıkıh Doktrininde Kişinin Malı Üzerindeki Tasarruf Yetkisinin Başkaları Lehine Sınırlandırılması
