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American Journal of  
Society and Law ( AJSL)

Reasons for Acquiring Defective Property in Afghan Civil Code and Islamic Shariah
Mohammad Tariq Hilal1*, Barialy Bahir2, Ahmad Naveed Noori2

Volume 2 Issue 2, Year 2023
ISSN: 2835-3277 (Online)

DOI: https://doi.org/10.54536/ajsl.v2i2.1603
https://journals.e-palli.com/home/index.php/ajsl

Article Information ABSTRACT

Received: April 20, 2023
Accepted: May 08, 2023
Published: May 14, 2023

Defective property can only be interpreted as an object’s property or only the property’s 
benefits, which ultimately include easement and usufruct rights. This research paper discusses 
the means of  acquiring the rights of  usufruct in four states (contract, will, preemption 
(Shofa), time- lapse). The means of  acquiring easement rights are discussed in three states 
(public sharing, contractility, and time- lapse). The research study aims to understand what 
points Islamic jurisprudence has focused on in the definition of  defective property and by 
what means individuals can acquire defective property. This work employs doctrinal research 
methodology and a descriptive, explanatory, and analytical research approach. It is worth 
mentioning that this part of  the research was entirely based on library sources. The primary 
sources included the Afghan civil code. The secondary sources included jurisprudential 
textbooks, scholarly published and unpublished journal articles, law reports, and online 
websites related to the research area. On the one hand, this research will solve the existing 
problems regarding the means of  acquiring defective property to a certain extent, and on 
the other hand, it will pave the way for more research in this field. It is concluded that the 
reasons for acquiring defective property in terms of  the right of  usufruct include: contract, 
will, intercession, inheritance and others. in terms of  the easement rights these reasons 
include common sharing, contractual requirements and the time-lapse. 

Keywords
Property, Defective Property, 
Easement, Usufruct

1 Law & Political science faculty at Rokhan Institute of  higher Education, Jalalabad, Afghanistan 
2 Law & Political science faculty at Mustaqbal institute of  higher education, Kabul, Afghanistan 
* Corresponding author’s e-mail: thilal172@gmail.com

INTRODUCTION 
Almighty Allah has created the earth everything t is on it for 
human beings to fulfill their daily life needs, achieve their 
goals, and worship Almighty Allah in the best way possible. 
Almighty Allah says that He has not created mankind or the 
Jinn except to worship Him. (Az-Zariyat, 56).  In order to 
accomplish and fulfill their daily needs, human beings have 
been trying to acquire property, so that the same subject 
matter of  acquiring something and becoming its owner 
is called property. However, acquiring this property was 
sometimes in a perfect form and sometimes in a defective 
form. This research study examines defective property and 
the means by which it is obtained.

Significance of  Research
We know that on the one hand, the resources available in 
the world are limited, and on the other hand, the needs 
of  human beings are many and numerous. Therefore, it 
is necessary to determine the principles for using these 
resources. Determining the causes of  defective property is 
therefore important to prevent confusion and conflicts by 
increasing the community’s knowledge.

Research Questions
1. What are the causes of  defective property?
2. Why is the recognition of  defective property 

important?
3. How to protect private property through the 

identification of  its means?

Research Objectives
1. To identify the causes of  defective property.

2. To bring and maintain order between individuals 
through the recognition of  defective property factors.

3. To protect private property through the recognition 
of  defective property’s means.

Defective Property and Its Types
In order to better understand defective property and its 
types, each of  them is going to be discussed as follows:

Introduction to Defective Property
Linguistically, the term property is derived from the Arabic 
word milk, meaning wealth. (Ameed, 2010).  Based on 
Islamic jurisprudence, property is defined as a relationship 
between man and property approved by the Sharia that 
makes it exclusive to him or her, and he disposes of  it in 
all manners as long as there is no impediment to disposing 
of  it. (Al-Zuhayli, 2012). According to property law, 
property is what a person owns, whether it is property or 
usufruct. Based on Article 1900 of  the Afghan civil code, 
property is “a right on the basis of  which a thing comes 
under the will and dominance of  a person, and only the 
owner may, within the limits of  provisions of  law, use and 
utilize it and take any possessive actions on it.” (Afghan 
civil code, 1976).

Types of  Property
In terms of  perfection and imperfection, property is 
categorized into two types: perfect property and imperfect 
(imperfect) property. Each of  them is defined as follows.

Perfect (Proper) Property
It refers to the property in that the owner possesses both 

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the property and its benefit, so that all the rights are 
related to the owner of  the property. (Al-Zuhayli, 2012).

Imperfect (Improper) Property
It only refers to the property or the benefits of  the 
property. If  the benefit of  the property is personal, it is 
called the right of  personal benefit, or the usufruct. And 
if  it is only related to the property, it is called the easement 
rights, which are only related to the property. (Taib, 2018).

Classification of  Imperfect (Improper) Property
Imperfect (improper) property is divided into three parts. 
The ownership of  a property, the right of  private interest, 
or usufructuary rights, and easement rights. Each of  them 
is going to be discussed as follows.

The Ownership of  a Property
Meaning that the property is owned by one person and 
the benefit is received by another. For instance, someone 
who bestows or bequeaths my house to someone else to 
live in during my death or until I am alive. Moreover, if  
someone tells someone else to cultivate my land as long 
as I am alive or for a period of  three years, if  the trustee 
dies, the right to benefit is still with the legatee until the 
completion of  the particular period. When the specified 
period is complete, both this right of  usufruct and the 
real property also return to the trustee. It infers from the 
above discussion that the property is permanent and the 
ownership of  the property’s benefit is temporary because, 
according to the Hanafi school of  Islamic jurisprudence, 
the right to benefit is not inherited and sometimes it is 
permanent, like in the contract of  Waqf. (Al-Zuhayli, 
2012).

Usufructuary Right (Right of  Private Interest)
According to Article 2229 of  the Afghan Civil Code, 
usufruct is defined as legitimate utilization,” meaning 
the right of  the utilizer to use and take advantage of  the 
property until it remains in its original state, even though 
it is not owned by him.” Moreover, the usufructuary right 
is to use and exploit the property as long as it remains 
intact, even if  it is not owned by him. (Ghaznawi, 2019).

Easement Rights
Linguistically, the term easement means leaning on the 
hand or taking help or benefit from something. (Ameed, 
2010). Based on Article 2340 of  the Civil Code of  
Afghanistan, “easement is a right over real estate for the 
benefit of  the real estate of  another person.” In other 
words, an easement is one of  the rights according to 
which the owner of  real property can use the property of  
another person on the basis of  his property. (Almawsueuh 
Alfiqhiah, 2000). Furthermore, the right of  easement is to 
prove the right of  one immovable property over another 
immovable property, and the second immovable property 
will be the property of  someone else. For example, 
passing water from a neighbor’s land to one’s own land, 
draining water to a specific place, passing on another’s 

land, etc. (Al-Zuhayli, 2012).

Acquisition Causes of  the Usufructuary Right
The acquiring factors of  usufructuary rights are 
categorized into four types: contract, will, preemption, 
and time lapse. Each of  them is going to be explained 
as follows.

Contract
A contract leads to the acquisition of  usufruct rights in 
the following three situations.

First Case 
In this instance, the contract creates usufruct rights 
through creation. This is a practical method, so that 
the owner sets the usufruct right on the property for 
the benefit of  someone else. It is the same whether the 
property is movable or immovable. This is done with the 
contract, which is the source of  the real right. This contract 
is usually in the form of  a hiba (gift) or sell contract, but 
sometimes it is in the form of  an exchange or sale with 
the option of  redemption. The duration of  the usufruct 
is specified in the contract. And if  the beneficiary dies, it 
will expire before the specified period expires. But if  the 
period was not specified in the contract, then the right of  
usufruct is calculated until the beneficiary’s death.

Second Situation 
In this case, the contract leads to the creation of  usufruct 
by way of  protection, which is an indirect method. 
Therefore, the owner of  the property transfers the land 
to another on the basis of  the contract and usually keeps 
the usufruct right for himself  until his death. And in this 
case, the contract originates for the right of  land, not for 
the right of  usufruct, but it indirectly causes the right of  
usufruct. (Al-Sanhouri, 1950).

Third Situation
In this case, the contract refers to the right of  usufruct, 
then its creation or composition, if  prior. (Al-Sanhouri, 
1950).

Will
A will is an act by which a person, directly or as a result of  
the dominance of  others, takes possession of  his property 
or rights after his death. (https://ahmadbanijamali.com). 
The Afghan civil code defines a will as taking action on 
an inheritance so that it takes effect following the death 
of  the testator and must be in writing or verbal. There 
are other well-known signs that could indicate that the 
testator is unable to write or speak. Moreover, making 
wills for God and charitable causes without determining 
the intention shall be valid, and they shall be spent on 
charitable affairs. Also, in making wills for mosques, 
charitable organizations, and other directions, scientific 
institutions and public interests shall be valid. In these 
cases, the testamentary properties shall be spent on 
construction, the benefit of  the poor, and other related 

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purposes, unless methods of  spending may be determined 
on the basis of  custom or indication. (Afghan civil code, 
Articles 2103, 2014, and 2109).

Preemption
Before selling property, a property owner must first 
determine whether anyone has the option to buy it 
before anyone else. Such an option is called a right of  
preemption. According to Article 2213 of  the Afghan 
Civil Code, “preemption is the right of  acquisition of  
ownership of  all or part of  a sold real estate in return for 
its price and the expenses incurred, even if  by coercion.” 
It infers from the above article that a person might have a 
preemption right for the property as a whole or part of  it. 
To acquire the property, the holder of  a preemption right 
must pay the owner for it, but the owner must first offer 
to sell it to him.
Moreover, based on Article 2214 of  the Afghan Civil 
Code, “the cause of  preemption is the attachment of  
property of  the preemptor to the sold real estate, either 
due to partnership or adjacency.” It infers from the above 
article that there are two types of  preemption rights: 
preemption rights based on partnership and preemption 
rights based on proximity to the property. Preemption 
rights based on a partnership might arise if  two people 
jointly own a business affiliated with a property. 
Preemption rights based on proximity arise when a person 
owns property that borders another person’s property, an 
adjacent neighbor.
There are three types of  partnership-based preemption 
rights. First, a partner can be granted the right to 
preemptively purchase the entire property, including 
the land and structures. Second, a person can have 
the preemption right to purchase the land but not the 
structures. If  a landowner wants to sell his property, he 
must first make it available to those who have partnership 
rights before making it available to the general public 
or his nearby neighbors. (Civil Code of  Afghanistan, 
Articles, 2016, 2017, 2018).
According to Article 2221 of  the Afghan Civil Code, 
“(1) In case of  convergence of  causes of  preemption, 
the stronger cause shall be referred. On this basis, a 
partner in real estate itself  shall have priority rights over 
a partner in the shared surrounding land, a partner in the 
shared surrounding land shall have priority rights over a 
partner in special rights over the sold real estate; and a 
partner in special rights over the sold real estate shall be 
given priority over an adjacent neighbor. (2) If  one of  
the mentioned persons in the above item of  this article 
relinquishes the preemption or his right extinguishes, the 
preemption right shall transfer to the person that comes 
immediately after his degree.”

Time Lapse 
According to Article 2302 of  the Afghan Civil Code, 
“right of  usufruct shall be acquired through legal action, 
preemption, or lapse of  time.” Moreover, Article 2284 of  
the Afghan Civil Code states that “No one may acquire 

rights contrary to his document based on lapse of  time.” 
“On this basis, no one may personally, to his own interest, 
modify the cause of  his possession or the principle upon 
which this possession is based.”
Based on Article 2285 of  the Afghan Civil Code, 
“Provisions of  claim barring lapse of  time shall apply 
to rights acquiring lapse of  time on what relates to the 
calculation of  the period, its stop and interruption, and 
reference to it before court, as well as on what relates 
to withdrawal from it and agreement on its modification, 
provided that the mentioned provisions do not conflict 
with the nature of  rights acquiring lapse of  time and 
provisions of  Articles (2286) and (2287) of  this Law.” No 
matter how lengthy the passage of  time has been, it must 
end as soon as the causes are established. If  the possessor 
relinquishes or loses it, even due to others’ actions, rights 
acquired during the lapse of  time shall terminate unless 
the possessor restores his possession or files a lawsuit for 
restoration within one year. (Civil Code of  Afghanistan, 
Articles 2286, 2287). 

Causes of  Acquiring the Rights to an Easement
Easement rights are acquired through the following 
means: common subscription, stipulation of  agreements, 
and time lapse. Each of  them is going to be discussed as 
follows:

Common Subscription
One of  the causes of  the easement rights is the common 
subscription, which means that the easement rights are 
common to the residents of  a country in public places. 
For instance, public roads, public seas and canals, etc. 
Every person has the right to benefit from public places, 
but only on the condition that other people are not 
harmed.

Stipulation of  Agreements
Placing a condition in agreements is considered the 
second factor or reason for the acquisition of  easement 
rights. For example, at the time of  selling the land to 
the buyer, the seller makes a condition that the right of  
passage on the land will be established.

Time Lapse
The third factor and reason for the acquisition of  the 
right of  easement is the continuity and stability of  an 
action from the past or unknown time. For example, a 
person inherits a piece of  land that has been irrigated by 
a neighbor’s land for a long time. Or that the used water 
flows onto the neighbor’s land. Therefore, the mentioned 
situations prove the right of  easement rights in the case 
where the neighbor should not be harmed. (Al-Zuhayli, 
2012).

CONCLUSION
It is concluded that the imperfect or defective property 
consists only of  the property or the profits of  the property. 
If  the benefit of  the property is personal, it is called the 

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right of  personal benefit, or the usufruct. If  it is related 
to the property, then it is called the right of  usufruct, 
which is only related to the property. If  it is related to the 
property, then it is called the right of  easement, which 
is only related to the property. Therefore, it can be said 
that the defective property consists of  usufruct rights and 
easement rights. Causes or factors of  acquiring the rights 
of  usufruct are: contract, will, preemption, and time 
lapse. The second type of  defective property is easement 
rights, which can be acquired through common shares or 
subscriptions, stipulation of  contracts, and time lapse.

REFERENCES
Al-Sanhouri, A. R. A. (1950-1970). Al-Wasit fi Sharh 

Qanun al-Madani, Ihya al-Tratah al-Arabi, Beirut, 

Lebanon.
Al-Zahili, W. (2012). Alfiqh aliaslamiy wadalatuh, 

Translation: Maulana Muhammad Yusuf  Tanuli and 
Mufti Abrar Hussain, Printed, Darul-e-Sha’at, Urdu 
Bazaar, Karachi.

Taib, B. (1396). Theory of  Property in Islam, Salam Publishing 
Society, Nangarhar.

Umid, H. (1389). Farhang Farsi Umid, Iran: Antarhat Rah 
Rushd.

Ghaznavi, G. A. (1397 AH). Property law, Antarhat Saeed, 
Kabul

Musawa F. (2009). Ministry of  Awqaf  and Islamic Affairs 
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Civil Code of  Afghanistan. (1355). extraordinary edition. 

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