Abstract

The rights granted to individuals by the legal system are examined with a fundamental distinction as regards their economic value as "property rights" and "personal rights". Property rights, which differ from personal rights in terms of their economic value, are characterized as ‘absolute’ if they can be asserted against everyone and as ‘relative’ if they can only be claimed against the convict on behalf of the debtor. If absolute property rights are based on a tangible (physical) subject, they are referred to as real rights. Real rights and rights of claim that have relative characteristics and can therefore only be used through the act of a specific person constitute two important components of a property. Although various attempts have been made to bring these two types of rights closer together in the historical process, these rights have continued to be considered different in terms of both nature and legal implications. The aforementioned difference arises from the form of dominance over the subject of the right, whether it is direct or indirect, the impact of these rights on the ownership of the property, whether the right is absolute or relative, whether it is continuous or not, and priority/superiority, which will be discussed in detail in the article. The conceptual framework and terms belonging to the Continental European legal system are also found in Islamic legal doctrine in similar or equivalent forms. In this context, the term "milk" has been used in the fiqh literature to encompass all property rights, and terms such as "milk al-ayn," "milk al-manfaa," "milk al-dayn," and "milk al-habs wal-yad" have been developed depending on the nature of the property subject to the right. Real rights and personal rights constitute two important parts of the asset. In some cases where legal interests between people are confronted, it may be necessary to choose between these two types of rights. In such cases, considering the authorities it contains, a kind of priority has been given to real rights over personal rights. One of the cases where this priority is most clearly seen is when a leased property is transferred to third parties while the current lease agreement is in effect. In Islamic law, the authorities granted to the person by the lease contract differ from the Continental European legal system. At this point, the powers granted by the lease contract in Islamic law differ from those in the Continental European legal system. This article argues that the right of the tenant in this regard is considered as real right in Islamic law, unlike in the Continental European legal system. To justify this, the authorities granted to the tenant in Islamic law have been examined in cases where the leased property is transferred to third parties through means that can be interpreted as unlawful acts such as sale, lease, or usurpation during the lease period. In addition, the unique approach of Islamic law on this issue has been expressed by considering both classical and modern fiqh works, and by making comparisons with Turkish law.