A Deliberation on Article 873 of Civil Law (Generalization of the Inheritance of the Drowned and those Buried under Debris to other Ambiguous Deaths)
Journal Title: فقه و اصول - Year 2012, Vol 44, Issue 89
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.
Authors and Affiliations
MuḥAmmad BarāRī LāRīMī
Keywords
Related Articles
- EP ID EP183275
- DOI 10.22067/fiqh.v1i1.9492
- Views 175
- Downloads 0
The liability of kinship group (‘Aqilah) in a different perspective
Reputable Imami jurisprudents believe that liability for involuntary manslaughter (wergild or diyah) is incumbent upon the institution called ‘Āqilah (paternal kinship group of the criminal). From the very beginning, the...
Non-Stipulation of Security from Loss in Commanding Right and Forbidding Wrong
In legal works, the obligatoriness of commanding right and forbidding wrong has become restricted to stipulatory realization including “security against loss”. The jurists believe that commanding right and forbidding wro...
Examining the Qur’ānic and Narrative Evidences for the Rule of “Prohibition of Taking Wages for Ritual Obligations”
Jurisprudence has been originated from the Qur‘ān and ḥadīth and the narrational or ma’thūr jurisprudence has been the first jurisprudential style after the rise of Islam, to such an extent that in the latter periods the...
The Concept, Validity, and Mechanism of Refinement of the Basis of the Ruling
Refinement of the basis of the ruling (tanqīḥ al-manāṭ) is among the important approaches in the process of legal reasoning and inference of legal rulings. By applying this procedure, one can achieve the ruling criterion...
The possibility of invoking jurisprudential provisions for the decriminalization of passive euthanasia
Suffering from those diseases which medical sciences have still failed to cure are some of the bitter events of human society. The ineffective treatments administered for these groups of diseases have been imposing heavy...