چکیده:
The Civil Code of Iran has remained silent regarding the recognition of liability arising from unjust enrichment as an independent source of obligation and has only limited itself to mentioning examples of it. Thus, a fundamental question arises: despite the existence of causes for involuntary liability in Islamic jurisprudence and Iranian law, is there fundamentally a need to establish a new rule to prevent the acquisition of illicit wealth? A comparative study between the legal systems of Iran and France shows that although, unlike French law—where judicial practice, in view of social necessities and following the country's legal doctrine, has accepted unjust enrichment as an independent source of obligation—Iranian law has not recognized unjust enrichment as an independent source of obligation, at the same time, traditional causes of involuntary liability are also unable to cover all the diverse instances of unjust enrichment on their own. Therefore, the authors believe that given the foundations of domestic law, and especially by citing the rule of 'prohibition of consuming property unjustly' (Hurmat Akal al-Mal bi al-Batil) in Islamic jurisprudence, it is possible in Iranian law to address the prevention of illicit wealth acquisition through the introduction of a new theory and to explain the conditions and effects of the rule on this basis.
خلاصه ماشینی:
A comparative study between the legal systems of Iran and France shows that although, unlike French law—where judicial practice, considering social necessities and following the country's legal doctrine, has accepted unjust enrichment as an independent source of obligation—Iranian law has not recognized unjust enrichment as an independent source of obligation, at the same time, traditional causes of compulsory liability are also unable to cover all the diverse instances of unjust enrichment on their own.
Therefore, the authors believe that considering the foundations of domestic law and especially by citing the rule of "the prohibition of consuming property unjustly" in Islamic jurisprudence, inIB} (*) Assistant Professor, Faculty of Law and Political Science (**) Master of Private Law {IBIn Iranian law, too, it is possible to address this by means of a new theory to prevent the acquisition of illegitimate wealth and to explain the conditions and effects of the rule based on these foundations.
The second reason is that perhaps the authors of the Civil Code, despite the existence of institutions such as usurpation (ghasb), destruction (itlaf), and unjust enrichment (istifa) in Iranian law, did not see a necessity for proposing a new source of liability to prevent unfair enrichment and considered all instances of "unjust enrichment" to be justifiable through these traditional institutions.
Thus, all discussions on this issue are summarized in whether, despite the compulsory causes of liability in Imami jurisprudence and Iranian civil law, a necessity is still felt for proposing a general theory that prevents any kind of illegitimate and unjust enrichment, and if the answer is positive, whether this new institution is compatible with its French counterpart in terms of foundations and conditions, or whether distinct foundations and conditions should be considered?
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