A Deliberation on Article 873 of Civil Law (Generalization of the Inheritance of the Drowned and those Buried under Debris to other Ambiguous Deaths)

Document Type : Research Article

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Abstract

The condition for the legatees inheriting from their legators, as asserted in the first part of article 875 of civil law, is that the legatee is to be alive when the legator dies. Therefore, for someone to inherit from another person, his or her being alive is to be certified at the time of the legator’s death. However, article 873 of civil law, in accordance with civil jurisprudence, has excluded (excepted) the case in which the cause of death is drowning or destruction, from the decree of the rule of non-inheritance of the two persons whose
priority or posteriority of death is ambiguous and regarded each one of them as the inheritor of the other. At the same time, the two above-mentioned exceptions contradict the general principle governing inheritance in jurisprudence and law. Accordingly, some questions comes one’s mind, the most important of which concerns the criterion for the inheritance ruling which has caused the above two cases to be regarded as exceptions; and also, whether this ruling is fit to be generalized to similar cases in which the priority and posteriority of the persons’ death is ambiguous.
Given the significance of the issue and the necessity for its comprehensive and clear explanation, the present research has, by referring to the Sunnī and Shī‘a legal texts through comparative study of Islamic law, tried to critically review the viewpoints of the renowned majority of the jurists who have a restrained interpretation of the evidence, and by way of weakening their evidences and strengthening the opponents’ view, highlighted the necessity of amending the article 873 of civil law.

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History

  • Receive Date: 21 August 2011
  • Accept Date: 21 August 2011

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