التصرفات الناقلة للملكية الواردة على العقار الموقوف غير المسجل ( دراسة مقارنة)

The Transactions Transferring Ownership of Unregistered Endowed Property: A Contrastive Study

Abstract

In this dissertation, the researcher addressed the issue of unregistered endowed property from a legal and legitimate perspective and focused on the problems that arise as a result of the absence of registration and its impact on the rights of the parties and society. The study aimed to demonstrate the importance of registering endowed properties and its role in protecting the rights and organizing the management of endowments, while presenting proposals to improve the legal framework of endowments in a manner consistent with the principles of Islamic law.
It became clear to the researcher through the dissertation that unregistered endowed property is a very important legal problem in Iraq, as failure to register the property leads to the absence of legal protection for it, which exposes it to disputes and affects the continuity of the endowment. Therefore, the importance of the research on this topic is to shed the light on its various dimensions.
The hypothesis of the problem under study relates to unregistered charitable endowments, which exclude mosques and cemeteries from charitable endowments, as it is not reasonable to transfer ownership of mosques or cemeteries. Therefore, our study will focus on charitable endowments, excluding family endowments and, in some cases, joint endowments.
The researcher adopted a contrastive analytical approach, analyzing Iraqi legal texts related to endowments, such as the Endowments Law, along with the jurisprudential rulings of Islamic schools of thought. Desk research tools were used to analyze legal, legislative, and religious sources, providing a contrastive perspective between the national legal system and international experiences.
The researcher reached several conclusions, most notably: the failure to register endowments leads to legal and social disputes that reduce the optimal use of endowed properties. Furthermore, the absence of legal and legitimate oversight weakens the effectiveness of endowments in achieving their development goals. The study emphasized that current legislation is insufficient to provide the necessary legal protection for unregistered endowments, requiring comprehensive legal reforms.
The researcher also concluded that despite the existence of laws regulating endowment affairs, Iraqi legislation still lacks clear provisions regarding unregistered endowed properties. This legislative deficiency constitutes a motivation to seek legal solutions that contribute to strengthening the legal framework for protecting these endowments.
The researcher made several recommendations, including: the necessity of mandatory registration of real estate endowments to ensure their sustainability and protect them from encroachment; the creation of a national database for the management and documentation of endowments; strengthening legitimate and legal censorship of endowments, and raising community awareness of their importance and role in achieving social solidarity and sustainable development.
The researcher also concluded that registering the endowed property is a legal and social necessity to ensure its continuity and protect it from encroachment, while emphasizing the need for cooperation between legislative, judicial, and religious authorities to achieve this. The dissertation is a scientific contribution to enhancing understanding of the relationship between the legitimate and the law in the management of endowments, and proposing practical solutions to support this important institution.