Pre-emption as accuse of winning property A Comparative study

Pre-emption as accuse of winning property A Comparative study PDF

Mansour Fuad Abdalrahman Massad

Supervisor(s)

Dr. Ali Sartawee -

Discussion Commity

146 صفحة

Abstract :

ABSTRACT In this thesis I have studied pre-emption as a cause of property, and discussed in the introductory chapter several topics related to the subject of pre-emption, stating with the nature of its language definition, then legal terminology , and the historical source. I concentrated on the disagreement of legislations regarding the definition of pre-emption subject of this comparison study , the Egyptian civil law differed from The Jordanian civil law and the Provisions Magazine which represents the Islamic jurisprudence which is considered the historical and material source of it. I illustrated the Judicial position Of these differences in the definition represented in which is stabilized by the courts including the Jordanian court of discrimination and the Egyptian court of cassation (COC). And thus I focused on the legal nature of pre-emption in terms of being considered sometimes as a license and other times as a right, until we had the opinion that it would approve a cause of winning property in a mid rank one degree higher than the license and less than the right. Turning to the characteristics that distinguish it from any other causes of pre-emption had been contrary to origins and I distinguished between and what suspect it of the legal terms of relationship to winning property of winning adverse such as preference an priority, and I discussed the precise difference between each of them and pre-emption that preference can only be in construction and priority can only be in an adverse detracted a stature property, and I showed the position of the Egyptian civil law, because the mentioned stature does not exist in t his law. The first chapter was devoted to pre-emption verifying and conditions, I showed the cases in which pre-emption is verified to enable the intercessor to ask for it, and I illustrated that there are common cases between the Egyptian civil law and the Jordanian civil law, but the cases differed in the Egyptian civil law because of the absence of division of the types of land as the situation of the Jordanian civil law, then I investigated the competing between the intercessors and illustrated the rule of that through showing the grades ad demonstrating how to make one of them before the other in case of multiple applicants of pre- emption, and how to divide the portions whether the intercessors are of one degree in which the Egyptian civil law differed when it gave each intercessor a portion equal to the share rate while the Jordanian civil law adopted divisions related to number of heads regardless of the range of shares owed by any of the intercessors, did not care about the number of shares much or less. Then I proceeded to study the act which allows pre-emption and its conditions which the Egyptian civil law limited in sale and donation provided compensation, and inflicted it with sale rule. And I illustrated sales in which pre-emption I not allowed, and the wisdom of prevention. I showed that the Jordanian civil law has not differentiate between the prevention and the projector in pre-emption and mad each of them a cause for not hearing the case. Then I focused on studying the conditions of money of pre-emption, and the necessity for this money to be a adverse , that there is no pre-emption cause to money, and the necessity for the pre-emption cause to remain until the completion of sale to enable the intercessor to ask for pre-emption, and the intercessor conditions and I showed that the absence of any condition makes the pre-emption unavailable, and the necessity for these conditions to be all provided. In the second chapter I discussed the pre-emption procedures which the intercessor has to do such as announcement of desire after official warning from the seller or the buyer to the intercessor, and its legal conditions, and the effect of breaching any of the conditions. then I proceeded to price deposit showing the aim of it and the price that must be deposited, and the rule of imagery in it, and I showed the position of legislations from it. I focused on the deposit time and its order between the procedures, I showed The remedy of the absence of any condition. Then I studied the prosecution and focused on the status and eligibility of the intercessor, I showed the time of prosecution, and discussed antagonism and its partners, showing the reasons for the difference between legislations in this regard, then I concluded this chapter describing the court specialized in this case depending upon what the judiciary settled in this regard. In the third chapter I dealt with the fall of pre-emption and the effects of pre-emption , and I showed the cases of falling in the legislations subject of the is study , showing what was limited and what was mentioned as an example , I focused on the intercessor's dispose of his pre-emption explicitly or implicitly, and not declaring the desire in the Egyptian civil law and not depositing the price as required by law, I offered cases settled in different texts, and showed some cases that the judiciary considered as projectors of pre-emption , then I studied the effects of pre-emption on the different relations between the intercessors and the buyer, and the difference between the legislations subject of this study in this regard, and the relation between the intercessor and the seller , I showed the reasons of the difference in these rules, and I illustrated the rules of relationship between the intercessor and the others in terms of rights to the property both before declaring desire or the prosecution , or after that. Conclusion has been offered showing the findings in most aspects of this study and the proposals in this regard.

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