Abstract:
Problem: Difference of opinions regarding the property restitution stems from inaccurate legislation or uncertainty of the legislator because of different opinions in jurisprudence in response to this question: assuming the existence and non-existence of the object considering the unjust remaining of the object in the recipient's ownership, is restitution of the object possible or a substitute can be demanded? Or is it appropriate to directly discuss about the price?Aim: Using jurisprudence and comparative study with the new amendments of the French Civil Law 2016, it is mentioned that in case of the object existence, immediate restore of the property to the owner is necessary and in case of any defect, the holder is responsible. However, such an obligation is incumbent upon the property holder with ill will.Finding and Conclusion: In our jurisprudence and law, in cases where the restitution of the originally property is necessery, in case of loss and where the benefits are achievable, the price of the restitution day can be demanded instead of seeking the same property. If the property paid is in cash, it can be calculated according to the inflation rate from the day of receipt to the day of payment. Other damages can be compensated based on civil liability.
Machine summary:
Aim: By examining jurisprudence and comparing it with the revised text of the French Civil Code of 2016, it has been concluded that if the property exists, it must be returned to the owner immediately, and in case of any deficiency, the holder is responsible for the loss; although in France, such an obligation will be on the bad-faith holder of the property.
By stating these points that custom is the basis for referring to the like, and today's custom does not base compensation on the like and measures the value of the goods with money in every case, accepting the new opinion of the French legislator from the perspective of Shia jurisprudence will be without objection, and this is consistent with what the legislator has spoken about guarantee and jurists have also left the criterion in being similar or priced to custom (Shahid Thani, 1416 AH: 188).
Of course, all the aforementioned cases are based on the popular opinion that accepts the real value and considers the price of the destroyed goods, not its fictitious value; as stated in the unified ruling No. 733 dated October 6, 2014: “According to Article 365 of the Civil Code, a void sale has no effect on ownership, meaning that the subject matter and the price remain in the ownership of the seller and the buyer, respectively, and according to Articles 390 and 391 of the aforementioned law, if, after receiving the price, the subject matter becomes the property of another, the seller is liable and must return the price, and in case the buyer is unaware of the invalidity, he must also bear the damages incurred by the buyer.
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