Foundations of the Action for Ejection in case of Forcible Possession in Iranian Law (a comparative study of Shia jurisprudence and French Law)

Type : Research Article

Authors

Abstract

The action for ejection is a case of protecting a legal institution, i.e., the right of physical possession. Following the example of French law, this action has been incorporated into Iranian law to protect mere physical possession. This possession does not require the features of possession as an owner. What is the basis of this protection? Various legal foundations have been mentioned concerning this question as follows: 1. protecting rightful ownership, 2. prevention of personal adjudication, and 3. presumption of legitimacy of possession. There is no such institution in Shiite jurisprudence. However, the Rule of Prior Possession (Qaida-i-Yad), with certain interpretations arising from jurisprudential principles, can form the basis for this action. The article concludes that the legal foundation of the action for ejection is prevention of personal adjudication. Therefore, this action is in conflict with the Rule of Prior Possession, since it protects usurpatory possession against the rightful owner. Thus, the regulations governing this action should be amended. Otherwise, it should be considered one of the newly arising jurisprudential problems and declared a valid matter of law.

Keywords

Main Subjects

Journal of Islamic Law Research
Volume 9, Issue 2 - Serial Number 28
September 2009
Pages 257-289

‌ Files

‌ Timeline

  • Received: 02 January 2009
  • Accepted: 10 February 2009

‌ Share

‌ How to Cite

‌ Article Metrics