The Apparent Theory in Afghan Civil Law (Dari)

Abstract

Rights can only be enjoyed by either the true owner or any person authorized by the true owner; however, in some cases someone other than the true owner of the right may enjoy that right. The question arises what is the status of this transaction. It can be answered on the basis of a general principle of law that exhibits two in-executable or invalid situations. If we apply the rules of general principles of law, it appears that the third party is affected by the transaction that he has transacted with someone other than the true owner; moreover, this will affect the strength and stability of the transactions too. In this situation, the socalled Apparent Theory allows us to apply all the elements of valid transaction. Nevertheless, two contradicting situations arise in the Apparent Theory. Firstly, the legal situation that is in accordance with general principle of law, which is protected by law; and secondly, the current situation that is in contradiction with law. Thus witnessing such contradiction in two situations the current situation will prevail according to the Apparent Theory. In this article we seek to consider and discuss conditions, effects and elements of ostensible theory in the civil law of Afghanistan.