چکیده:
According to Article 311 of the Civil Code, the legislator has obligated the usurper in two cases to provide a substitute for the usurped property. The first is when the actual usurped property has been destroyed. The second case is when the actual usurped property has not been destroyed, but due to certain reasons, returning it to the owner is impossible. What the usurper provides to the owner in the first case is called 'Badal-e-Talf' (substitute for destroyed property), and what they deliver to the owner in the second case is called 'Badal-e-Hiloleh' (substitute for evasion/circumvention). Therefore, Badal-e-Hiloleh becomes relevant when someone usurps property, and then the usurped property, without being destroyed, temporarily becomes inaccessible, making its return to the owner impossible. Such a situation raises questions, including: What is the nature of Badal-e-Hiloleh? To whom do the benefits of Badal-e-Hiloleh belong during the period of inaccessibility to the actual property? Does the ownership of Badal-e-Hiloleh belong to the person from whom it was usurped, or does it merely grant them the permission to benefit from it?
خلاصه ماشینی:
Section Two - Evidentiary grounds for Badal-e-Hilaulah in jurisprudence To prove the necessity of paying Badal-e-Hilaulah by the usurper in cases where accessing the essence is impossible, various proofs and perspectives have been cited, which we will examine below: First Discourse - The Rule of Non-Harm (Qa'idah Nafy al-Darar): It has been stated that the obligation of the owner to wait until the property is returned to him, or the lack of a ruling on the liability of the substitute against the usurper, or the usurper's refusal to pay the substitute, is to the detriment of the owner, and the rule of non-harm does not necessitate its absence.
(206 Third Discourse - The Rule of Liability for Destruction (Qa'idah Dhaman al-Itlaf): It has been stated that in cases of Badal-e-Hilaulah, since the usurper has abolished the owner's authority over his property and, on the other hand, due to the impossibility of accessing the essence (ayn), he is unable to restore that same previous authority, it is therefore necessary that he restores a similar authority over the essence to the owner, and it is evident that this meaning is only possible if he pays Badal-e-Hilaulah.
The late Sayyid Hassan Imami also accepts the latter view in other words and states: A property that, for some reason, cannot be returned to its owner does not leave the ownership of the owner and remains in his ownership, and the obligation of the usurper to provide a substitute is in exchange for the owner's deprivation of its usufruct.
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