Tort Liability for the Succession of Hands: A Comparative Legal Study

Abstract

The plurality of hands over the property of others, in a successive order, one after another and without the owner's permission, is a common phenomenon in civil societies. Yet no trace of it is found in the legal and jurisprudential texts, except for what the Imami jurists discuss under the term "successive hands".Here lies the research problem: determining the meaning of this term, the liability arising from it, and its legislative basis, for which no independent place is found in civil legislation.The research method consists of an attempt to describe the term "successive hands" and to analyse the resulting liability according to the rules of Islamic jurisprudence and the principles of positive law, through a comparison between the schools of Islamic jurisprudence and the civil codes, especially Iraqi law.The research reached several results, the most important of which is that the schools of Islamic jurisprudence, as well as civil-law jurists, differ in determining the basis of the subsequent hand's liability, whereas the research favours the common basis between will and possession, expressed as the "advance of the hand", in accordance with the jurisprudential principle known as the rule of the hand.Finally, the research recommends amending Article (199) of the Iraqi Civil Code and its counterparts in Jordanian and Emirati law, because they contradict the general principles and the rules of justice.