Ruling on selling the apparent owner (Comparative study) الدكتور / عبد الكريم أحمد علي المرتضى*

Abstract

Abstract:

The phenomenon of selling the apparent owner has increased in many countries, and in Yemen in particular, as a result of the official documentation system absence in the past. Moreover, the fact that it remained in communal for sequential periods, as well as the lack of recognition by the Yemeni Civil Law of the statute of limitations for gaining rights and the adoption lack of possession rule in movables with a valid deed of title, furthermore, the Yemeni Civil Law did not rely on the apparent as one of the reasons for acquiring property...etc.

The researcher dealt with the concept of the apparent and the position of the Egyptian, French and Yemeni legislators regarding the apparent owner, ownership under a corrupt contract in Hanafi jurisprudence, and missing the invalid contract with the Malikis.

The most important finding in this research are: 1) Presence of some applications that some see as applications of the theory of apparent ownership, including Article 45 of Law No. 77 of 1963 regarding Egyptian inheritance, Article (120) of Law No. (20) of 1992, regarding Yemeni personal status of the missing, this is a clear application of the apparent status theory, and if the idea of ​ apparent situation common in France - was partially taken by the Egyptian legislator, which aims to protect others who dealt in good faith with the owner of the apparent situation - then some of the Islamic jurisprudence has mentioned similar means to protect the buyer from the apparent owner. 2) Considering the apparent owner as a source of the right and the positive legislator’s reliance on him as one of the reasons for acquiring ownership is a very dangerous matter. Expansion of this rule is not desirable in practical application, because freeing the apparent hand without limits would harm the ownership of the right holder. In order to reduce the frequent occurrence of this behavior, we recommend the Yemeni legislator to add a legislative text that requires a specific period of stay in common, or to divide the spatial situation and let it be five years, similar to what the Egyptian legislator but with possibility to provide that it is allowed to renew it if necessary. 3) The Yemeni civil law did not take into account what was held by (Hanafi) regarding the validity of the buyer’s disposal of the sale to another person under a corrupt contract. Moreover, the Yemeni Civil Law did not take into account the idea of ​​losing the invalid contract with the owners because there is no article regarding it. 4) The position of the Yemeni Civil Law on the possession role in movables is summarized in general rule, that the owner’s claim against the possessor is not heard after a period of time has elapsed; If the conditions of possession approved by law are met without differentiating between real estate and movable property, and this is stipulated by Article (1118) Yemeni Civil, which states that “a property claim from a present on a fixed hand shall not be heard… after thirty years have elapsed from the day of the placement of the property.” The hand on it... etc. ", here the researcher recommends that the Yemeni legislator need to put in place provisions consistent with the nature of the transferee in terms of the period after which the lawsuit is not heard.

 Keywords: Sale of Apparent Owner - Ownership Under a Corrupt Contract - Loss of the Invalid Contract - Property Lawsuit - Apparent Possessor - Legal Position Possessor.