Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

first possession and avderse possession in the Iranian legal system and common law

Document Type : scientific research paper

Authors
1 PhD student in Private Law ,Department of Private Law, Ayatollah Amoli Branch,Islamic Azad University,Amol,, Iran
2 Assistant Professor, Law Department, Ayatollah Amali Branch, Islamic Azad University, Amol, Iran
3 Associate Professor, Department of Private Law, Faculty of Law and Political Science, University of Mazandaran
Abstract
Ownership has always had a significant status, prestige and prestige in different legal systems, and the feasibility of limiting private ownership has been discussed and debated by philosophers, lawyers and thinkers since ancient times. Whether in the Iranian legal system or in the common legal system, it has been accepted and favored by lawyers to not restrict or restrict the personal rights of owners in the event of conflict with collective rights or interests, such as the rights of the state, although there is an opposing theory in absolute support of the right to personal ownership. The purpose of the present article is to explain that if a person occupies another person's property or property for a long time, but no objection is made by the owner, does the possessor have a right to ownership or not? The present article concludes with a descriptive-analytical method that in the common law legal system, especially in countries such as England and America, a rule called conflicting or secondary ownership has been established and implemented as a barrier against absolute ownership of individuals due to economic, cultural and social considerations. In the Iranian legal system, although the limitation of private ownership in the conflict between personal and social rights has a religious and legal aspect due to the principle of non-harm and Article 40 of the Constitution, there has been no independent or explicit rule or regulation to reduce the powers of owners, as in the common law legal system. It seems that the legislative silence on the aforementioned issue, if it causes legal scholars to be passive in interpreting and unquestioningly following the opinions of the predecessors and successors, will distance the law from the ultimate goal of justice. Therefore, judicial or legal logic and the rule of preventing abuse of rights require that the right to absolute ownership be limited in conflict with social benefit, growth, development, and economic excellence.
Keywords

Subjects


 
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Articles in Press, Accepted Manuscript
Available Online from 21 December 2025