A jurisprudential and legal reflection on Article 326 of the Civil Code (Purchase of usurped goods with knowledge of usurpation)

Articles in Press

Document Type : Original Article

Authors

• Sayed hani Sabery ¹
• Sayyed mohammad hadi Ghabooli Dorafshan ²
• Mohammad Hasan Haeri ³

¹ Master student of Ferdowsi University of Mashhad

² Associate Professor of Ferdowsi University of Mashhad

³ Professor at Ferdowsi University of Mashhad

10.22067/jfiqh.2024.84903.1675

Abstract

According to Article 326 of the Civil Code, if a learned person buys an item from the usurper by usurpation, he can refer to the seller to receive his price, while according to the famous scholars of Imami jurisprudence, he does not have the right to refer to the usurper. The appearance of the mentioned article shows the legislator's support for The customer is aware of usurpation and this is against justice and the spirit of legislation. Famous jurists believe that the scholar cannot refer to the price of usurpation, but in some cases and social relations, the said opinion is against fairness and justice. The customer's consent to pay the price, the rule of action, the non-application of the rule of filial piety, and complaints about property are some of the reasons that have been stated for the customer not to refer the usurpation to the usurper's seller. On the other hand, those in favor of referring the mentioned customer to the usurper have put forward reasons such as not obtaining Shariah ownership, invalidity of the transaction, the flow of the rule of beneficence, and analogy with corrupt selling. The present research has carefully evaluated the arguments of the proponents and opponents in a descriptive and analytical method and has reached the conclusion that if a customer buys a product with the knowledge of usurpation, but does not intend to cooperate in the crime and aggression, he can also refer to the usurper in case of loss of price. Otherwise, he will have the right to refer to the nosy seller.

Keywords

• usurper
• civil law
• Article 326
• jurisprudential foundations
• Knowing usurpation

Main Subjects

• Civil jurisprudence

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