The jurisprudential analysis of the option of excessive profit (Ghabn) in the exercise of preemption (Shufa).

Articles in Press

Document Type : Original Article

Authors

1 Assistant Professor, Department of Imamiyah Jurisprudence and Law, International University of Islamic Denominations

2 Assistant Professor, Department of Jurisprudence and Principles of Law and Imam Khomeini’s Thought, Research Institute of Imam Khomeini and Islamic Revolution, Tehran, Iran.

10.22034/mfu.2025.142452.1485

Abstract

Taking pre_emption is a legal act and a type of unilateral and it is a solution that is provided to the other partner to remove the loss caused by the forced partnership, in the assumption that a partner sells her share of divisible immovable property to a third party. When the sale occurs, the person exercising the right of pre_emption can take possession the sold share by paying the price and turn the property into his separate property, but if the person who exercising the right of pre_emption becomes aware of the exorbitant price after taking pre_emption, how can find a way to avoid incurring a loss? Can it be considered possible and legitimate for the person who exercising the right of pre_emption to use option of lesion? Searching in jurisprudential sources indicates that these questions do not much preoccupy the minds of jurists. It is possible that this lack of attention is due to their belief in the irrevocability of unilateral legal act through puting option.
The current study has analyzed the possibility of option of lesion action in taking pre_emption in jurisprudential opinions and documents. According to the findings of the present research, despite the prediction of the unilateral legal act nature for taking pre_emption, provided there are conditions and requirements of option of lesion, there is no prohibition to terminate it through this option.

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Main Subjects

Comparative Studies on the Schools of Jurisprudence and its Principles

Articles in Press, Accepted Manuscript
Available Online from 06 April 2025

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