The Right of Easement from the Perspective of Imami Jurisprudence (book)
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| Book Information | |
|---|---|
| Author | Abdullah Gohari Tale' |
| Style | Analytical |
| Language | Persian |
| Pages | 231 |
| اطلاعات نشر | |
| Publisher | Al-Mustafa International Translation and Publication Center |
- Abstract
The Right of Easement from the Perspective of Imami Jurisprudence is the title of a jurisprudential research work on the set of privileges that allow a person to use another's property to fully secure the benefits and interests of their own property. The book's author, Abdullah Gohari Tale', cites religious teachings, including the verse "and the neighbor who is near" (*wa-l-jar dhi-l-qurba*), to prove the legitimacy of the right of easement. In this verse, various forms of cooperation with neighbors are recommended, of which the right of easement can be a priority. The author states that jurists, in addition to general evidence, have also argued for the legitimacy of the right of easement based on the content of the Rule of No Harm. Furthermore, it can be said that rational people also emphasize the existence of the right of easement. In the author's view, interference with the right of easement leads to disruption of the system of livelihood, which is rejected by reason.
According to the author, contract, law, or a natural situation are among the causes of the right of easement, and testament and compromise are also considered mechanisms for establishing easement rights. He states that the right of irrigation (*haqq al-shurb*), the right of drainage (*haqq al-masil*), the right of passage (*haqq al-murur*), and the right of neighborhood (*haqq al-jiwar*) are instances of easement. In an easement where the obligations of the property owner are specified, the duty, based on the evidence of "Fulfill [your] contracts" (*awfu bi-l-'uqud*), is to adhere to the terms of the contract.
Brief Introduction and Structure
The book "The Right of Easement from the Perspective of Imami Jurisprudence," authored by Abdullah Gohari Tale', a graduate of the Qom seminary with a doctorate in jurisprudence and educational sciences, was compiled and published in 1399 SH by the Al-Mustafa International Translation and Publication Center. According to the author, research on the right of easement in Shia jurisprudence does not have a significant history; for this reason, this research is considered a novel work. The book is derived from the author's doctoral dissertation, which, using an analytical-critical method, seeks to answer questions about the right of easement (p. 20).
The author has organized his research into an introduction and three parts. In the first part, he discusses concepts such as the right of easement, usufructuary right, and the right of priority, as well as general topics like a reflection on the origin of rights and an analysis of the elements of the right of easement (pp. 25-80). He dedicates the second part to the issue of the legitimacy of the right of easement and its causes (pp. 81-164). The third part of the book is devoted to explaining the instances, rulings, and effects of the right of easement (pp. 165-206). Finally, the author provides a summary and conclusion (pp. 207-216).
The Nature of the Right of Easement
The author considers "irtifaq" (easement) to mean tolerance and gentle conduct, which influences its technical meaning. According to him, from the perspective of Imami jurisprudence, the "right of easement" is a right that a person has in another's property, such as when the water channel for one's property passes through another's property. In the right of easement, tolerance and kindness towards the right holder are necessary so that no problem arises in its exercise. Unfortunately, the right of easement is not a well-known chapter in Imami jurisprudence (pp. 29-39). It should be noted that the right of easement is a right of one real property (*'aqar*) over another; in the words of jurists, the right of easement is a right that pertains to two properties, a servient and a dominant one. It is clear that the use of a right of easement is an instance of incomplete disposition, as the right holder can only use another's property to the extent necessary to meet the needs of their own property (pp. 70-73).
According to the author, the right of easement is among the dependent rights, meaning it is attached to the real property (immovable property), not the owner, and it is not independently transferable. He also considers this right to be indivisible, meaning that if a jointly owned property has a right of easement and some of the owners transfer their share, they cannot divide the right of easement (pp. 75-78).
The author believes that the right of easement has close connections and links with some other rights such as the usufructuary right, the right of priority, and the right of precincts; therefore, it is necessary to examine these terms as well and to clarify their similarities and differences (p. 43).
- The usufructuary right is a right by which a person can use a property whose substance belongs to another or has no specific owner, such as the use of mosques, public streets, and endowments. The usufructuary right, like the right of easement, is a right, with the difference that the right of easement is specific to immovable property, whereas the usufructuary right includes both movable and immovable property. Also, the right of easement is inheritable, but the usufructuary right terminates at the end of the beneficiary's life (pp. 45-46).
- The right of priority or special right is a special right of disposition that the owners of property can use in some way after its monetary value has lapsed; a clear example is the special right of the owner of a dead animal, for which some permissible uses are exclusive to them (p. 48).
- The right of precincts (*harim*) also has a slight overlap with the right of easement, as both are rights whose application is for providing access and benefiting from properties and real estate where agriculture, residence, and securing drinking water and the like are difficult or impossible without using the precincts. One of the features of the right of precincts is its adjacency and connection to the land or property of the right holder; however, in the right of easement, this contiguity is not important, and the servient property, meaning the property in which the real property owner has a right of easement, may be at a distance; for example, agricultural land whose water comes from distant areas and passes through the properties of others (pp. 53-55).
Arguments for the Legitimacy of the Right of Easement
The author then proceeds to explain the arguments based on which the principle of the legitimacy of easement actions—that is, using another's property to fully secure the benefit of one's own real property—is established. It should also be noted that what is meant by legitimacy in this section is the prescriptive ruling (*hukm taklifi*) or the religious permissibility of easement; meaning, in the course of examining the general evidence of the issue, the ruling on the owner's transfer of a portion of the benefits of their real property to secure the benefits of another's real property is examined (pp. 82-83).
The Verse of Kindness to the Neighbor
One of the verses of the Holy Quran that the author has used to establish the legitimacy of the right of easement is the verse of kindness to the neighbor (*wa-l-jar dhi-l-qurba wa-l-jar al-junub*). He considers the proof of the legitimacy of the right of easement through this verse to be dependent on several points:
- The verse addresses multiple and diverse rulings, from the obligation to worship God to being kind to neighbors and wayfarers.
- What is meant by near and distant neighbors, to which the verse refers, are immediate neighbors or more distant ones; this range is identified in some narrations as up to forty houses.
- The ruling concerning neighbors, based on the rule of conjunction, is the same as the ruling of kindness to parents.
- Although kindness to neighbors is originally conjoined with kindness to parents, it has the difference that the ruling is not obligatory, but recommended.
- What is meant by kindness (*ihsan*), as specified in the narrations, is a collection of good and commendable behaviors, the least of which is not harming the neighbors (p. 85).
Considering these points, the author believes that the verse recommends various types of cooperation with neighbors, and that the right of easement is at the forefront of this cooperation, where the property owner places a portion of the benefits of their property at the disposal of their neighbor (pp. 86-87).
The Verse of Cooperation
Another verse that the author cites for the legitimacy of the right of easement is the verse of cooperation (*wa ta'awanu 'ala-l-birri wa-t-taqwa*). In this verse, God commands the believers to assist and help in good deeds, the minimum of which is the recommendation of cooperation within the bounds of religious demands. The right of easement is certainly a legitimate matter, and cooperation in this regard would be an instance covered by the verse. Therefore, actions taken, especially by the owner of the servient land, are instances of aiding in piety and righteousness (pp. 88-89).
Some have raised an objection to citing the verse of cooperation, stating that the subject of the verse is cooperation (*ta'awun*), and cooperation is instantiated where a group of individuals participates in the production of a single act. Therefore, in cases where the act is not the product of the participation of several people, cooperation does not apply (p. 90). In response, it has been said that cooperation means providing help to another in an absolute sense. No one can doubt that if someone cooperates with another person, cooperation has not occurred in this act. Thus, proving the recommendation of assistance in matters of easement based on this verse is not problematic. Of course, the share of the owner of the servient property in this cooperation and participation is greater than that of the other person, because it is their assistance and cooperation that gives rise to the right of easement for the dominant property (pp. 91-92).
The Hadith of No Harm
The author proves the right of easement by citing the implicature of the hadith of "No Harm" (*la darar*). In his view, the hadith of No Harm, which was issued regarding a dispute between a man named Samura ibn Jundab and a man from the Ansar (pp. 93-94), speaks of a reality that is an instance of the right of easement. This is because the narration concerns Samura's comings and goings to check on his garden, comings and goings that required entering another's courtyard, but Samura was not considerate of the family of that house. Therefore, the principle of using another's property for what was required to check on the palm tree was not problematic; what became problematic was the annoyance and harassment of the Ansari man's family, for which the Prophet (s) ordered the uprooting of that palm tree to punish Samura (p. 100).
Makarem Shirazi, a contemporary jurist, has also argued for the legitimacy of the right of easement, in addition to general evidence, based on the content of the narration of "No Harm" according to this same interpretation. He has specified that Samura's right of easement was in itself legitimate, but since in exercising that right he committed transgression and violation of the privacy of others' lives, he was met with the decisive ruling of the Prophet. It is evident that this narration reveals the practice during the Prophet's era regarding the observance of the right of easement (pp. 100-101).
The Prophet's Judgment between Zubayr and the Ansari Man
In some jurisprudential and exegetical books, a narration is quoted in which two of the companions in the early days of Islam had a dispute about their turn for irrigating their garden, and they eventually went to the Prophet (s) for judgment and resolution. According to the author, this narration also, by implicature, indicates that the legitimacy of the right of a water channel, which is among the rights of easement, was established in the era of the Lawgiver. That is, in the time of the Prophet (s), the use of other people's agricultural land by landowners for the flow and passage of water for irrigation was both common and approved by the Sharia (pp. 102-103).
The Foundation of the Rational
According to this research, the practice of the rational, which is also termed the foundation of the rational (*bana' al-'uqala'*), is one of the instances of tradition (*sunnah*). The practice of the rational is a type of social behavior that is formed based on rationality. The condition for the authoritativeness of this practice is its contemporaneity with an Infallible (a), and the reason for its authoritativeness is the Infallible's approval, because the practice itself, by virtue of being a behavior arising from rational people, has no authority (pp. 104-105).
Given this meaning, it can be claimed that the practice of the rational regarding the formation of the right of easement also existed in the time of the Lawgiver. This is because the pattern of human life in the time of the Lawgiver was also based on the model of collective interactions, and people could not provide everything they needed alone and independently and build walls around their homes, farms, and passageways. They too, in their social life, provided for their various needs through the right of easement and by using the properties of others; in that time as well, life with the right of easement was an unchangeable option (pp. 105-106).
A clear witness to this claim are the reports that have reached us from the era of the Infallibles within some narrations. In the jurisprudential discussions of jurists regarding the installation of waterspouts and balconies in shared and public ways, practice has been cited, which indicates a right of easement. Enjoying this right of easement is also conditional on this type of action not causing harm or anyone opposing it, in which case the consent of the people must be obtained (p. 106).
Reason
What can be invoked as a rational proof (*dalil 'aql*) regarding the right of easement is that in the absence of the right of easement, the system of people's lives would fall into disruption. That is, if this existing model of livelihood, which is the product of thousands of years of human experience and accumulation, were to be set aside, and everyone's activity were to be confined and restricted to the space under their own ownership, and they were not allowed to interfere with and use the properties of others, the system of livelihood would certainly lose its normal course. Therefore, disruption in the right of easement will lead to disruption in the system of life, and since disruption in the system of livelihood is reprehensible, disruption in the right of easement is also rejected by the judgment of reason (p. 107).
Causes of the Right of Easement
According to the author's report, by means of a contract, the owner of a real property can recognize an easement right for the real property belonging to another person. This contract may be gratuitous, like a gift, or it may be in exchange for a specified consideration and in the form of a condition within a sale contract. Also, in some cases, the right of easement may arise from the natural location of a real property; for instance, if it is located in an area where accessing some heights is impossible without using another's property. Sometimes, public law also establishes rights for citizens' land or immovable property in the properties of others to secure the interests of society (pp. 113-114).
A testament (*wasiyyah*), in the author's view, is also one of the mechanisms for creating a right of easement, provided the testator has the necessary capacity for financial dispositions. Thus, any person who meets the conditions stipulated in jurisprudence for a testator can establish any kind of easement right for someone's property, and in this respect, there is no difference whether the testament is a contract or a unilateral act. Also, a condition within a contract and, along with it, a compromise (*sulh*) are considered broad ways to establish any kind of easement right (pp. 125-133).
In the discussion of the origin of the right of easement, apart from the factor of natural easement, all had the nature of a contract or a unilateral act, such as a testament, a condition within a contract, and law. Therefore, in easements whose origin is of this legal nature and whose restrictions, conditions, and the obligations of the property owner are specified, the duty, based on the evidence of "Fulfill [your] contracts" (*awfu bi-l-'uqud*) and "Muslims are bound by their conditions" (*al-muslimun 'inda shurutihim*), is to adhere to and fulfill the terms of the contract or unilateral act. In other words, such easements are governed by the conditions stated in the contract or the provisions of the unilateral act (pp. 191-192).
Instances of the Right of Easement
The author then proceeds to state a few instances of the right of easement (p. 165).
- Right of Irrigation (*Haqq al-Shurb*): This is having a specified share of water that is customary for irrigating fields and trees and for other uses. However, applying the right of easement to the right of irrigation is not very clear, because the right of easement is the use of another's property for the better and complete use of one's own property. But the use of agricultural and drinking water that has a common source is not an instance of the technical term easement, unless its use for land and garden or for drinking requires the use of another's property, and in this respect, the right of irrigation is an easement right (pp. 167-168). Some consider the right of irrigation and the right of a water channel to be the same thing and define it as the use of another's land for the flow of water for irrigating a garden, farm, and the like (p. 170).
- Right of Drainage (*Haqq al-Masil*): This means the right by which the right holder can drain the excess water from their land to the lands of others during irrigation and similar situations.
- Right of Passage (*Haqq al-Murur*): This means passing and coming and going through another's property for some reason.
- Right of Neighborhood (*Haqq al-Jiwar*): This arises from the contiguity of property boundaries, by which every neighbor has rights over the properties of other neighbors for passage and some uses, such as placing the end of a roof beam on another neighbor's wall (pp. 171-174).
Rulings for Property Owners and General Rules
According to the author, in the discussion of the causes of creation and the evidence of legitimacy, it became clear that the right of easement, in all its forms, is a right that is formed by customary means. Since it pertains to the property of another, one must refrain from using it beyond what the easement customarily requires for disposition in the other's property. Also, the owner of the servient property cannot, under the pretext of exercising their ownership rights, prevent the full enjoyment of the right of easement. Therefore, to understand the general effects and rulings consequent upon the right of easement, understanding the following rules is effective (pp. 188-189).
The Role of the Rule of No Harm in the Right of Easement
One of the rules that has the widest application in easement rights is the Rule of No Harm. According to this rule, it makes no difference; both the right holder and the person whose property is subject to another's right of easement do not have the right to harm the other. Both must, in the course of exercising any easement rights and also in other decision-making, observe the provisions of this rule as a governing principle. The clear result of adherence to the Rule of No Harm is that both parties—that is, both the easement holder in the course of obtaining the benefits of their property which is dependent on another's property, does not exceed the agreed-upon conditions and also does not misuse the manner of it, and on the other hand, the person whose property is subject to another's easement, also must not prevent the right holder from obtaining benefits and must not misuse their ownership rights (pp. 195-196).
General Effects of the Right of Easement
In the author's opinion, the permissibility of waiver is one of the general effects of the right of easement. In jurisprudence, waiver (*isqat*) means a person's relinquishment of a right they have against another, or forever releasing the said person's obligation from being claimed. Given this meaning, the right of easement, which is among the rights, can be waived, and the obligation of the owner whose property is subject to the right can be absolved (*ibra'*) (pp. 199-200).
Since the right of easement is a right, one of its characteristics is that it is often transferable, meaning it can be transferred to someone else for free or in exchange for a consideration. And since the right of easement is a dependent right, the validity of its transfer at least as an accessory to the principal ownership is without issue, both in accordance with the provisions of the right of transfer itself and by the general criterion regarding the transferability of financial rights, and also from a jurisprudential perspective. Also, another general effect of the right of easement is that the right of easement is transferred to the heirs after the death of its owner (pp. 200-203).