Preemption due to the adjoining neighborhood in the Islamic jurisprudence and the Algerian law

Abstract

This study aims at clarifying the opinions of different scholars about whether an adjoining neighbor in real estate can benefit from the right of preemption. In addition, it shows the position of the Algerian legislator on this matter. To do so, the study adopts three approaches for three different goals: • For presenting the different opinions and the evidence of each, the descriptive approach is adopted. • In discussing the evidence of the scholars and indicating the most likely plausible of them, the analytical approach is followed. • The comparative approach is used to compare the different views of the Shariaa scholars, on one side; and to compare these views to the Algerian Civil Code and the Real Estate Guidance Laws, n the other side. The main conclusions of the study are summarized in the fact that the scholars are divided into two groups about the preemption for the adjoining neighbor. A group grants this right to the adjoining neighbor. This group includes Hanafis, Ibadhis of the Maghreb, and Shurayh and those who agree with him. The other group, which consists of scholars of other sects, brohibits this right. Whereas the Algerian Civil law adopts an adaptive approach, depending on the type of the real estate

Keywords

• preemption
• the adjoining neighborhood