A Comparative Study of the Position of Preemption in Proving Ownership in Iranian and Egyptian Law

Abstract

Priority of possession in the legal systems of Iran and Egypt, although it originates from different foundations, ultimately pursues a common goal, which is to consolidate ownership and maintain social and economic stability. In Iranian law, this institution originates from the jurisprudential and rational rule of "Yad", according to which, whoever possesses property is presumed to be its owner unless proven otherwise. The Yad rule is accepted as a legal principle in Articles 30, 31 and 35 of the Civil Code and considers possession to require two elements: material (control over property) and spiritual (intention to own). This possession, if continuous, clear and unambiguous, is considered proof of ownership, although in Iran, unlike Egypt, it does not cause possession and has only a probative role. In the Egyptian legal system, prior possession is defined in the form of the passage of acquired time (Articles 827 and 828 of the Civil Code) and can directly cause possession, provided that there is good faith, continued legitimate possession and sometimes a valid document. While in Iran, the passage of time is not accepted in ownership and is only effective in proving the right, in Egypt, the passage of time and the continuation of possession are considered as legal reasons for the transfer of ownership. However, both systems share in protecting the legitimate possessor and establishing stability in legal relations: Iran through claims of aggressive possession, nuisance and obstruction of rights, and Egypt through the system of limitation of time. Therefore, in both systems, pre-possession or the rule of hand is not only considered a sign of ownership, but also an important tool for reducing property disputes and ensuring the legal and economic security of society, although Iranian law considers it as a positive evidence and Egyptian law considers it as a cause of possession.