The survey of continuation of possession Capacity after death

فقه و اصول

Articles in Press, Accepted Manuscript, Available Online from 02 January 2024   

Document Type: Original Article

DOI: 10.22067/jfiqh.2023.80889.1531

Authors

Ahmad Adibi¹; mohamad mehdi ALSHARIF^{* 2}; Alireza Arashpour²

¹Ph.D. student of Private law, university of esfahan

²Ph.D. , Associate Professor, University of Esfahan

Abstract

Due to application of Article956 of the Civil Code, many lawyers considered death to be the end of person's capacity and considered the deceased as lacking capacity.“capacity to exercise rights” and " part of capacity to obtain rights", which by nature does not have ability to survive after death, like rights arising from marriage, are lost with death. but, "the right to own property" and " possession Capacity "as parts of capacity to obtain rights, have a limited possibility of survival and continuity after death.Basically, Islamic Shari'a does not consider the possession Capacity to be exclusive to living people, and it considers the possession Capacity to "Sharia's Funds"and "Waqf" Based on the results of this research, which was conducted in a library format and with content analysis, application of Article956of the Civil Code was not reliable and the possibility of continuing ownership after death, and even new ownership after death, was accepted in certain cases. clear example of the first case should be found in the continuation of the "insolvent estate" in the ownership of the deceased, and not being transferred to the heirs; Examples of new ownership after death include: "Ownership of the deceased over the Compensation due to crime against the dead","Destined ownership over the murder ransom""Return of the sold property to the deceased in case of termination by the heirs". and "the deceased's ownership of the objects that caused them before death"like "the catch that falls in the fishing net after the emerald of the fisherman".

Keywords

continuation of possession Capacity after death; Capacity of deceased; Continuity of ownership after death; New ownership after death; capacity to obtain rights of deceased

References