Türk ve Irak Hukukunda mukayeseli olarak kanuni şuf'a hakkı

Abstract

SUMMARY Our thesis, in which the legal preemption right in Turkish and Iraqi law is examined, comparatively consists of two parts except the introduction. In the introduction part, terminology, types, and the history of legal preemption right are explained. In both legal systems, legal preemption right arises from law. (TCC a. 659, ICC a. 1128-1144) According to both codes, when one of the sharers of the co-ownership sells his share to a third party, legal preemption right rises for the other sharers and in such a case these sharers have the position of the owner of the legal preemption right. In this respect, legal preemption right is an indirect way of limiting the ownership of the immovable. Addition to this, the regulation of legal preemption right in both Turkish and Iraqi law is exposed in the introduction part. Moreover, the amendments in the Iraqi Civil Code in 1978 about the legal preemption right are also explained. As a result of these amendments two conditions should be fulfilled in order to rise of the legal preemption right. Firstly, a house has to exist in the co-ownership relation. Secondly, the owner of the preemption right should not have another house. In the first part, the characteristics of legal preemption right are mentioned. Different views are examined both in Turkish and Iraqi law in this part. But, in both systems, legal preemption right is accepted as a constructive right. Based on this, the owner of the right uses the right by a one sided will declaration and neither the seller sharer's nor the buyer's consent is sought. 121Moreover in this part, the conditions that rise the preemption right are mentioned. Two conditions are needed for the use of the legal preemption right. Firstly a co-ownership relation should exist, and secondly the preemption incident (the sell) should occur. In the second part, the conditions of the use of legal preemption right are mentioned. To be able to use this right, first of all, one should be the "sharer", secondly he should have learned the "sale" and its main conditions. But this right should be used in the period as stated in the code. Addition to this, in this part, the legal relation, which rises out as a result of the use of legal preemption right is examined. In this respect, the dominant theory in Turkish law accepts this relation as an obligation following the good whilst the Iraqi Civil Code accepts the succession theory. 122