Abstract:
Bailment is a specific institution in the common law system, regarding which there is relatively much disagreement among jurists about its position, scope, rules, and effects. The scope of bailment has become so wide that it has provoked criticism from some common law jurists. The result of this expansion is ambiguity in its scope. However, judicial practice has accepted this institution and mentions it as one of the sources of obligation alongside contract and tort. What has caused criticism of this institution is considering it as one of the sources of obligation, which results in mixing and disagreement in the examples of each source of obligation. Comparing this institution with similar institutions in Islamic law and Iranian law shows similarities between bailment and the institution of amanat (trust). The main similarity can be seen in the examples of these two, but there are many differences, especially in their effects. Unfortunately, in dictionaries and some translated works, the equivalents of 'amanat' (trust) or 'wadi'ah' (deposit) have been used for it, which causes misunderstanding of this concept. In Islamic law, amanat (trust) is not a source of obligation, but a description attached to the actions of the possessor, which is sometimes metaphorically described as a contract.
Machine summary:
Although the definitions provided of bailment often include contractual examples, some common law jurists have spoken of bailment in a way that is almost equivalent to legal trust in Islamic law: “Bailment is realized when a person possesses another’s goods and keeps them for him, and the law determines the conditions of keeping” (301.
If someone is forced to keep goods, this relationship is not considered bailment, and he is only obliged not to intentionally damage the goods and is not obliged to take care of them (in Imamiyyah law, it is said that the possession of the trustee may be due to a contract or not, and where it is not contractual or is voluntary, such as the finder of lost property or a found item, or it may be involuntary, such as a taxi driver whose passenger’s belongings are left in his vehicle (Langroudi, 1386, vol.
4. Another notable difference is how to file a lawsuit, which states that “the execution of a non-movable lease is based on the principles governing property and contracts, but the execution of bailment is subject to a combination of contractual rules and mandatory guarantees (611.
In Islamic law and Iranian law as well, the necessity of returning the original item and the non-transfer of ownership to the trustee are among the differences between trust-based possession and ownership possession, such as lease, loan, and even mortgage, because in mortgage, the principle is return, and the sale of the mortgaged item is conditional on fulfilling the condition (non-performance of the obligation), and it is not the case that the mortgagee has the absolute right to dispose of and not return the mortgaged item.
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