Abstract

    The legal presumption is one of the most important philosophical legal issues in the various branches of law, including the private law, and in civil law particularly.

    We have known that the assumption is a method of legal and moral drafting that is used in the spirit of the text in contravention to the legislator’s use of facts and natural fact, in particular. By infracting the natural fact, he is, then, infracting the legal fact because it gives an object a nature that is un similar to its own one such as a real-estate, in particular, moral personality and ex post facto. Through being a moral method, the assumption is developing a legal base, when creation, justification and expansion, all of which are a violation of fact.

    Our study was compared to Islamic jurisprudence, where we studied its doctrines and we found that the term “trick” is its synonym as the assumption and trick are both based on the infraction of facts. Islamic jurisprudence has different views about the definition of “trick” and make judgments. Also, we have found that the “trick” has multiple divisions and by means and legitimacy. Moreover, we have oriented towards comparative civil laws in this aspect such as Egyptian Civil law and French Civil Law, with reference to some judgments embodying the assumption through the applications included in this study. 

    We have divided the study plan into three chapters preceded by a preface, in which we discussed the historical evolution of the assumption and how the ancient peoples used it, as well as its search for divine laws, including our Islamic law. The title of the first chapter was the concept of the legal assumption, where we discussed its definition in terms of language, and the conditions to verify the assumption as the latter requires three conditions to be followed. The first one is that there is a text in the civil set suggests that there is assumption, the second one is that there is a ground for assumption which is certain and constant. The third condition is that the assumption is contrary to facts.

    We have found that the idea of assumption is mixed with some legal ideas which makes us distinguish between it and those ideas as they inconsistent with the fact. Some of such ideas are the presumption, deception toward the law, fictitious assets and generality of the base and its forfeiture.

     In the second chapter, we have studied the division of legal assumption and its role in the legal base because it becomes very clear for us that the assumption has a significant role as it creates, expands and justifies the legal base through interpretation. Furthermore, it has divided into many divisions by nature, function and participation in creating the legal base.

     The legal jurisprudence explained and justified those types.In terms of function, it is divided into a practical and theoretical assumption, while In terms of nature, it is divided into a standard and fictitious assumption, but in terms of participation in creating the legal base, it is divided into an original and interpreted assumption. 

    In this chapter, we have discussed the difference of legal jurisprudencein the field of assumption between the supporters of the idea who say that it shall be used unconditionally and the opponents who claim that it leads to serious results. Also there is the middle position which says that it shall be used temporarily until the legislator replaces the legal status contrary to the fact with a fact-identical legal status.

In the third chapter, we have tackled some practical applications dealt by Iraqi civil legislator and the comparative civil law in which the assumption is achieved. This idea has some practical applications in Islamic jurisprudence, where we have studied some of them in details and we have found that they contrary the fact, so the assumption is achieved.

    In the end of our study, we have ended with a conclusion containing the most significant results and some suggestions.