The right of lien in Islamic law (Specific to Hanafi school)

This thesis examines the right of lien, which authorizes the creditor to keep the properties related to the debtor's receivable by avoiding delivery, in the Hanafi school. The main purpose of the right to lien is to guarantee the receivables. This right has been adequately examined and theoretically discussed in Turkish law doctrine. On the other hand the right in question has been included in the individual events in the furû' fiqh (substantive fiqh) corpus of the Hanafi school. In our study, the issues related to the right of imprisonment in the sources of the Hanafi school were considered as the starting point and were examined. After that, it has been tried to create a theoretical framework within the sect by making use of the systematic that they follow when evaluating the right of imprisonment of the works written on the law of property in Turkish law. The right to lien is sometimes referred to together with the pledge in Hanafi literature. On the other hand in Turkish law, it is stated that the right of lien is a close disposition with pledge, right of detention, the defense of non-payment and the exchange. Hanafi fuqaha evaluated the right of lien as a type of "milk", which is expressed as a real right in human law. According to them, the main reason for asserting the right of imprisonment is the elimination of the imbalance between the receivables in an obligation to deliver and receive. In order for this reason to make the right of lien possible, the nature of the execution in the debt relationship must be different, the party against which the imbalance is established must have rightful possession of the property belonging to the debtor, there must be a connection between this property and the receivable and the receivable must be due. Due to the realization of these reasons and conditions, in the Hanafi school, the right of lien in sales contract, icara, suf'a, contract of mandate and marriage contracts, luqatah, usurpation (ghasb) and safe custody can be claimed. While claiming the right to imprisonment, there are some provisions that arise. Accordingly, the party with the right of lien has the authority to keep the property in order to force the other party to perform the debt and to secure its receivables. In some cases, the said party has the right to sell and redeem this property at the price. In addition to the power of procuration given by the right to lien, it also imposes the responsibility of keeping the property on the owner. These provisions continue until the right of lien ends. According to the sources of the Hanafi school of fiqh, the right to lien is not an independent right but arises due to a claim, so the right of lien ends with the expiration of this claim. It was said that in order for the right of lien to be asserted, the receivable must be due. Later this receivable may be deemed to be deferred. In this case, this right expires, as one of the necessary conditions for the right to lien is not met. In the debt relationship where the right to imprisonment arises, a instruction made in certain situations may reduce this right. At the same time, since the right of imprisonment is seen as a weak right by the Hanafi fuqaha, the creditor's voluntarily losing her possession of the property subject to lien also results in the termination of the right.