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تصرف المستاجر بحقوقه الناشئة عن عقد الايجار : دراسة مقارنة == The Tenant's Disposition Of His Rights Enuing Form Leas Contract Comparative Study
Author name:
ابراهيم عنتر فتحي الحياني
Supervisor name:
ضحى محمد سعيد النعمان
General topic:
Law
Specific topic:
Civil Law
Degree:
Master
University:
University of Al Mosul - Collage Of Law - Department Of Private Law
Language:
Arabic
University location:
Mosul
Key words:
- الحقوق
- التصرف
- الايجار
First pages:
13T1525 - p.pdf
Abstract:
ان تصرف المستاجر بحقوقه الناشئة عن عقد الايجار يعني امكانية قيام المستاجر بنقل حقوقه والتزاماته الناشئة عن عقد الايجار الى الغير وهو ما يسمى بالتنازل عن الايجار، وهذا التنازل قد يكون بمقابل مبلغ من النقود فنكون هنا بصدد بيع لحق الايجار وقد يكون دون مقابل | The tenant's disposition of the right ensuing from lease contract means the tenant ability to transfer rights and obligations of the lease contract to the other, which is called lease cession. Such cession could be for an amount of money, in case the selling of lease rights, and could be for nothing to achieve other aims, in case the endowment of lease right. Also, there is a possibility of tenant's right to use the leased to be delayed for the benefit of someone else, and this is called hidden lease. In this case, the tenant is not moving the rights ensuing from the original lease contract to the hidden tenant, but there will be obligations for the original tenant to enable the hidden tenant to get the benefit of the lease right. The tenant will be able to house or to hose the others in the ceased. Knowing the limits of the tenant disposition of the right ensuing from lease contract requires at the beginning to define the tenant right. This has been a controversial issue among the jurists, as some regard the tenant right as a real one, while others regard it as a personal one. Some of the jurists stated that tenant right is a personal one enjoying some of real right characters. This controversial issue is dealt with in chapter one. The limits of tenant authority to use the rights ensuing from tenant lease differ whether the lease is subject to Civil Law items or Lease Law items. As for Civil Law, the tenant's disposition of the rights, ensuing from lease contract is allowed regardless of the disposition form. This is the general principle in the civil laws under comparison. But the tenant is not allowed to dispose the rights, according to Civil Law, if this is against the agreement between the landlord and the tenant sating that the last is not allowed to use the rights ensuing from lease contract. This is called the prohibitive condition; but if the tenant hired a property and established a factory or a shop and wanted to sell the property, it is allowed to cancel the prohibitive condition, in case this is not harmful for the lease and the buyer presented enough guarantees. The general rule in the lease laws states that the tenant is not unable to dispose the rights ensuing from lease contract unless obtaining the written approval of the landowner. However, there are some conditions in which the tenant is allowed to dispose rights ensuing from lease contract without obtaining the written approval of the landowner. This issue is dealt with in chapter two. As tenant authority limits in using rights ensuing from lease contract in Civil Law are different from those in Lease Laws regarding moving from permission as a general rule in Civil Laws to prohibition as a general rule in Lease Laws as a general rule, this difference has lead to impacts resulting from tenant's use in both kinds of rules. In addition, impacts ensuing from tenant contracting, receding lease and hidden lease are illustrated in chapter three. The study is summed up with a conclusion of the main results and suggestions.
