كيفيت ضمان در غصب با رويكردي انتقادي به مفهوم مثلي و قيمي

Liability in usurpation: a critical approach towards ʹfungibleʹ and ʹnon-fungibleʹ concepts

There is a difference of view among jurists as to the definition of ʹfungibleʹ and ʹnon-fungibleʹ and also the liability of the person who has usurped at the time of paying the value. Article 311 of the Civil Code (of Iran) has obligated usurper to return the usurped property itself and if the property is wasted, he is under the obligation to return a similar property or pay its value. Article 312 obliges the usurper to pay its value at the time of paying. Following a theoretical approach and an analytical method, the article seeks to find suitable solutions for the difference among jurisprudents and maintain legal justice in the society. Based on this study according to the jurisprudents, it is the ʹUrf (custom) that passes judgment as to the fungible and un-fungible qualities of goods and that in view of his unjust act the usurping individual is liable to pay the highest value of the property from the time he usurped it until it was wasted.