نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسنده English
Property of real estate is considered as one of the fundamental elements of economic systems in societies. For this reason, the legislator, with a cautious approach, has made it mandatory to officially register contracts related to real estate in order to prevent any illegal interference and seizure of property rights. This requirement not only protects the rights of the owners, but also guarantees the legal security of third parties who intend to trade on these properties without being fully aware of their legal records. The issue of the present research is whether it is possible to find a solution based on jurisprudential evidence that prevents the transfer of immovable property in private procedures and restricts it to notarial deeds. In response to this fundamental question, there are two general approaches; the denial approach (rejecting the possibility or legitimacy of such an approach) and the affirmation approach (providing a jurisprudential-legal justification for this solution). Some jurists from the past and present believe that the principle of authenticity and validity of a notarial deed is contingent upon the registration process meeting conditions equivalent to Sharia- compliant proof. In contrast to denial approach, there exists the affirmative approach, which holds that by precisely revisiting the Sharia ruling on the validity of a notarial deed as one of the means of legal evidence, it can be concluded that a notarial deed not only holds legal validity but also takes precedence over other forms of evidence –including private deeds- in cases of adverse. Proponents of this view have relied on strong references, including primary rulings, secondary rulings, and even government rulings, to establish their legal jurisprudential foundations regarding the validity of notarial deeds. This research, in the light of describing and analyzing the jurisprudential propositions, after stating each of the aforementioned positions and examining the existing arguments, examines and criticizes them, ultimately defends the idea of legitimacy and permissibility of mandating the title transfer exclusively through notarial deeds, and considers it in accordance with the texts and the conduct of the wise.
کلیدواژهها English