نوع مقاله : پژوهشی (داوری عادی)
گروه آموزشی فقه و مبانی حقوق اسلامی، دانشکده الهیات و معارف اسلامی، دانشگاه فردوسی مشهد، مشهد، ایران
عنوان مقاله [English]
Among the most important issues of law and jurisprudence is whether general sale is promissory or possessory. It goes without saying that if the object of sale is exactly specified, the sale contract would be possessory, and as soon as the contract is concluded, the ownership transfer takes place. However, by the virtue of the article 350 of civil law, the object of sale could be general and a whole. In this case, most law intellectuals and experts believe that after the contract is signed, no ownership is seized by the buyer, and merely, he is able to claim his ownership by the time the sale object is submitted or identified to him. Therefore, in cases in which the sale object is general, the effect of contract solely commits the vendor to the sale. Accordingly, most of lawyers believe that general sale is a promissory contract and did not maintain such a sale to be possessory as included in the article 238 of civil law in contrast. However, Imamiyeh jurisprudence experts and intellectuals substantiated that the aforementioned sale is a possessory one providing irrefutable proofs. The present research attempts to state Imamiyeh jurisprudence and substantive law perspectives with respect to the general sale›s enjoying promissory or possessory nature deploying a library and analytic-descriptive method of research. It highlights Imaiyeh jurists› viewpoints holding that general sale is possessory and reiterates jurists› and lawyers› fundamental disagreement on the concepts of ownership, property, source of property and the classification of contracts to promissory and possessory.