ضمان ناشي از استيفاي نامشروع در حقوق ايران و فرانسه

Responsibility Arisen from Unjust Enrichmeant in Iranian Law and French Law

This general rule that nobody should enrich without a justified cause, is a moral rule to form the spirit of many legal rules. But in the legal systems at the world, there is no similar answer to the question whether the unjust enrichment can be recognized as an independent source of obligation and bind the person who has enriched unjustifiably to return it: Whereas some of civil codes as German Civil Code and Swiss Obligations Code Recognize this rule as an independent source of obligation, French Civil Code is silent about recognition of it. Jurisprudence of France, however, after a period of doubt, with attention to social necessities and following the legal doctrine which was influenced by Roman law itself, finally recognized it as an independent source among other obligation sources, and cleared its conditions and effects. Iranian Civil Code which is influenced by French Civil Code in the section of "Obligations incurred without a contract", also is silent about unjust enrichment as an independent source of obligation and has only contented with some examples about it. Therefore, in spite of causes of automatic responsibility in the Islamic Jurisprudence and Iranian law, there is a substantial question: Is it basically necessary to constitute a new rule to prevent unjust enrichment? It could be answered that although unjust enrichment is not been recognized in the present Iranian legal system as an independent source of obligation, the causes of automatic responsibility can not contain all of various examples of unjust enrichment either. Therefore, with attention to the basis of internal law and especially relying on the prohibition of the enrichment by void causes in the Islamic Jurisprudence, the authors believe that it is possible to arrange a new theory preventing unjust enrichment, based conditions and effects on this theory.