Financial Rights and How They Are Exercised and Transferred - Appendix C (Definitions)

Transcription

1. Shari ’ah Standard No (42): Financial Rights and How They Are Exercised and Transferred Appendix (C) Definitions Right of Easement It is the established right over one piece of real estate for the benefit of another piece of real estate. Right of Irrigation (Shirb) Shirb literally means a share in water. The Shari’ah definition is a turn to irrigate land or trees or crops. Right of Watercourse (Majra) It is the right of an owner of land distant from a watercourse to bring it via the property of his neighbour to his land to irrigate it. Right of Drainage (Masil) It is the right of a person to get rid of excess water in his property via the property of another person. Watercourse is different from drainage in that watercourse is in order to bring water whereas drainage is to get rid of water not needed for the land. Right of Way Easement (Murur) It is the right of the owner of an interior piece of land (land surrounded by other persons’ lands) to access his land by means of a road/path. It makes no difference if the road/path is public, not owned by anyone, or is privately owned by someone. Right of Ascendancy (Ta’alli) The right of ascendancy means one person’s right to have his structure be physically located above the structure of another person. This happens in multi- storey buildings in which one person owns a unit in a lower storey and another owns a unit in the storey above it. 1058
2. Shari ’ah Standard No (42): Financial Rights and How They Are Exercised and Transferred Preemption Preemption in the terminology of jurists means the entitlement of the partner to buy what his partner has sold for the price at which he sold it. Intangible Rights Intangible right is the authority of a person over something that is abstract, e.g., ideas and inventions. The International Islamic Fiqh Academy, headquartered in Jeddah, issued its Resolution No. (43) 5/5 on the subject of intangible rights, which include; Trade Name, Title, Trademark, Authorship, and Invention. The Academy considered these to be rights particular to their respective owners which have established financial value. Consequently, these rights are recognized by the Shari’ah and they should not be violated. Right of Utilization (Intifa’) The right of utilization is a juridical concept that refers to a person’s temporary right over the asset of another person, who authorizes him to use it, exploit it, and dispose of its usufruct, but not the asset itself, during the period of utilization. The majority of jurists, including the Shafi’is, Malikis and Hanbalis, distinguish between the ownership of usufruct (Manfa’ah) and ownership of utilization (Intifa’). Granting ownership of utilization (Intifa’) only allows a person to directly utilise [the asset]. Granting ownership of usufruct (Manfa’ah) is more general and comprehensive; it allows its owner to use the asset himself or to enable others to use it, either for compensation, as in a lease, or without compensation, as in gratuitous lending of the asset. Right of Exclusive Lease (Hikar) Hikar is the right to lease the land of an endowment for a long period of time. The Mustahkir (exclusive lessee) makes an advance payment to the endowment which is nearly equal to the price of the land that is used to develop it or for the maintenance of its premises. Another, insignificant, amount is arranged to be paid annually to the endowment by the Mustahkir (exclusive lessee) or by whosoever this right has been transferred to. 1059
3. Shari ’ah Standard No (42): Financial Rights and How They Are Exercised and Transferred Right of Priority in Subscribing to an Increase in a Company’s Capital It is the stipulation that the existing shareholders will have the right of priority in subscribing to an increase in the company’s capital by purchasing shares at their nominal value Vacating Houses or Shops It refers to the right to stay in a house or shop. Business License It is a right granted by the authorities to some traders to deal in specific activities. Right of Demarcation It means taking possession of a piece of land and marking it with markers or a wall. Demarcation confers privilege and precedence over others. It means that whosoever demarks land is more entitled to develop it; however, it does not confer ownership. Disposal Disposal is the competence approved by the Shari’ah , or custom, or law that enables the owner of rights to dispose of them. This disposal can either be by transferring his right to others for recompense; e.g., sale or barter, or without recompense; e.g., gift, will, or by relinquishment. Abusive Use of a Right It the use of a right in such a way that it is likely to cause serious extraordinary harm to another. Expiry It is the lapse of a right due to the passage of time. However, in the Shari’h, rights do not lapse due to the mere passage of time. 1060