Researching the Distinction Between Real Right and Personal Right and Its Effects; A Comparative Study in Islamic and Western Law | ||
| مطالعات حقوق خصوصی | ||
| Article 6, Volume 54, Issue 1, May 2024, Pages 89-122 PDF (1.01 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.22059/jlq.2024.359028.1007768 | ||
| Authors | ||
| Mahmoud Kazemi* 1; Rahim Pilvar2 | ||
| 1Associate Professor, Department of Private Law and political science, University of Tehran,Tehran, Iran, | ||
| 2Associate Professor, Department of Private Law, Faculty of Law, University of Tehran (Farabi College), Qom, Iran, | ||
| Abstract | ||
| The field of financial rights is divided in a number of ways within the context of legal knowledge. One of the most fundamental of these divisions is the distinction between "objective" and "personal" or "in personam" rights. The genesis of this distinction can be traced to Roman law. It subsequently permeated the Western legal system, including that of France, following a protracted journey. The foundation of this differentiation lies in the legal tenets governing litigation, the enforcement of rights, and the conduct of court proceedings. It has now become the primary consequence of embracing this differentiation in the proceedings and the exercise of rights. However, over time, a substantial number of rulings have been issued on this matter. An objective right is a right that an individual possesses over an external object, which they are able to exercise independently, without the need for the involvement of others. In contrast, a personal right is attributed to the entirety of a particular individual's property, and the holder of the right does not possess dominion over a specific asset belonging to the debtor. This article's focus is on examining the existence of the division of financial rights into objective and personal categories and its implications in Islamic and Iranian law, despite the existence of differing interpretations. In examining this issue and related issues in this article, the descriptive analytical method is employed, and materials are collected through the library method. This is done with the aim of investigating the concept, history and distinction of objective right from personal in Western law, and of re-examining the place of this separation and its implications. In examining rulings in Islamic jurisprudence and Iran's law, as well as the latest developments in Western law (France) and Imamiyya jurisprudence, this article aims to delineate the border between them in Iranian law. It will then proceed to examine some of the most important examples of this distinction, and elucidate the significant practical effects that arise from it. In response to this, the authors argue that in Islamic law, the objective right is distinct from the personal one, and that there are specific rulings and effects associated with each. This is because, within the field of jurisprudence, the financial right is not divided in this way. Additionally, the distinction between objective and personal rights in Iranian law can be discerned from the Civil Code and the Code of Civil Procedure. However, with regard to the concepts of object (ein) and debt (dein), as well as the scope of objective and personal rights, there are notable differences between the legal systems of Islam and the West, which have been the subject of extensive investigation. In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code. In Islamic law, although the jurists have not explicitly articulated this distinction between rights and obligations, they have instead distinguished between "right" and "melk" as well as "ain" and "dain," which is a division of property based on its existence in the world. In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code. However, there are rulings in jurisprudence that cannot be justified except on the basis of distinguishing between objective and personal rights. This demonstrates that the jurists were aware of this division and accepted it. Examples of such rulings include the mortgagor's right of precedence over the mortgaged property over other creditors, the dissolution of the mortgage contract, rent and usufruct in the event of the destruction of the subject of the contract due to force majeure, and so forth. In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code. In Western law, "ownership" represents one of the most evident instances of an objective right, with its foundation invariably situated in an external specific object. However, in Islamic and Iranian law, the ownership right exhibits a distinct character, contingent upon the object in question, whether external or general. If the property in question exists in the external world, In Islamic and Iranian law, ownership is an objective right. However, since general property can also be the subject of ownership, this assumption of ownership is not objective. This is to say that a person may be the owner of another person's liability (zemme). In other words, every creditor is the owner of the debtor's zemme. In conclusion, it is notable that in Western law, the term "object" is used in contrast to "obligation," and the concepts of "objective right" and "personal right" have been established as a foundation for this distinction. However, in Islamic law, there is no such contrast between "object" and "obligation." In other words, in Western law, the term "object" is synonymous with a material object that exists outside the legal system. However, in Islamic and Iranian law, the term "object" refers to both an external object, which is a material object and is a "definite object", and also to the object in zemme, which is the general object and "ein koli dar zemme" is actually the same as "debt". "Dein" is defined as "general property under zemme". This fundamental distinction between the concept of "object" in Western and Islamic law has prompted some scholars to question the existence of objective and personal rights in Islamic law. This article addresses these concerns and provides a comprehensive analysis of the subject. It should also be noted that in Islamic law, "dein" is the opposite of "specific object" (ein moayan) and the word "object" is used absolutely in contrast to "profit". In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code. In contrast to Western legal systems, Islamic law distinguishes between the concepts of debt and obligation. In the event that the subject is a general obligation, the term "obligation" is also "debt"; otherwise, it is solely an obligation. In Western law, absolute obligation constitutes a personal right, with the rules of the personal right pertaining to it. However, in Islamic law, the distinction between debt and obligation means that some rules of the personal right are related only to debt, not pure obligation. From the perspective of civil procedure law, this division exists in Iranian law, with lawsuits divided into personal and objective lawsuits. Furthermore, at the execution stage, once the claimant's objective right has been established and a definitive judgment has been issued, this judgment is enforceable against any individual or entity in possession of the property subject to the judgment, even if they are not a party to the proceedings. Consequently, the expropriation decree is enforceable against any possessor, even if they are not a party to the lawsuit. However, when the court judgment contains an individual condemnation of the obligor, it is enforced only against that same person. | ||
| Keywords | ||
| Object and debt; Definite object; Objective and personal right; Right of priority; Right of pursuit; Asset | ||
| References | ||
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منابع
الف) فارسی
https://lawresearchmagazine.sbu.ac.ir/article_56408.html، (11 تیر 1402)
https://hoquq.iict.ac.ir/article_38141.html، (11 تیر 1402)
ب) عربی
ج) خارجی
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