Study of the Void of Article 819 of the Civil Code Regarding the Customer’s Possession of Property Belonging to the Pre-Emption Right

In case of exercising the pre-emption right, the connected interests are awarded to the exerciser of pre-emption right and the separable benefits to the customer. However, the issue becomes difficult if the customer has created an added value in the property owned by pre-emption right by spending money and without trespassing, such as planting a tree on the land or constructing a building, because, on the one hand, the customer has taken possession of the property during his ownership, and on the other hand, the exerciser of pre-emption right is eligible to take the property without these possessions. Article 819 of the Islamic Civil Code states the solution in giving the customer the right to remove trees and buildings. It is obvious that removing the building requires destruction and the tree cannot be moved in most cases. Therefore, removing these possessions means destroying them and causing a lot of damage to the customer. But the legislator is silent on this issue. Imamiyah jurists have tried to solve the problem by referring to issues such as the necessity of unstable ownership, the rule of prohibition of detriment, the rule of respect for Muslim property, the rule of sovereignty, etc. The many differences of opinion among jurists and the existence of legal gaps in this case clarifies the necessity of research in this field. In this paper, while expressing and criticizing the existing opinions in this field, it is concluded that if the customer’s possessions are carried out in compliance with all legal requirements, the pre-emption right is forfeited. However, if the customer possession is not protected by the law, the pre-emption right is fixed, and the exerciser of pre-emption right can forfeit the customer possession without being responsible for its loss of value.