عنوان مقاله [English]
One of the conditions of the exchanged items is the liberty of object of sale; that means the customer can do any seizing ownership that he/she wants. A commodity that’s the object of transaction should not belong to another person; therefore some jurists added liberty of ownership condition to the conditions of the exchanged items. The acceptors of this condition applied some works and branches to it. Whether the liberty is an independent condition or not; whether the liberty of object of sale is the condition of the validity of object of sale or the one of the barriers of the effectiveness of sale, is a matter of controversy among the jurists. Some examples of non-liberty are the sale of the object pledged, the sale of endowment and shareholder’s equity in corporations, and the right of option and the person in whose favor the condition is made. In this research, the means and barriers of the liberty of property, independence of liberty of condition, the means of non-liberty of property is discussed form the viewpoint of Imam Khomeini, Sheikh Anṣārī and the statuary law.
Findings: belonging of other’s right as a general principle prevents effectuation of the deal. And examples that the jurists have mentioned are confirmations of this rule without having any features. That is with the abolition of the feature in the mentioned cases one can generalize and develop it to the right of other in all cases, such as the right of shareholders in corporation; because what is meant by liberty of property is that its seizing is permissible for the owner and does not encounter with any barriers. Shares in limited companies are not free toward the company and company managers, and they are often free toward shareholders.