Int. j. econ. manag. soc. sci., Vol(3), No (5), May, 2014. pp.

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Religious Jurisprudence Regarding Estifa Legitimate and

Illegitimate Exploitation
Forouzan Alaeinovin*
PH.D .Department of Religious Jurisprudence and Islamic law, Karaj branch, Islamic Azad University, Karaj, Iran

Gholamhossein Kiani
Department of Religious Jurisprudence and Islamic law, Karaj branch, Islamic Azad University, Karaj, Iran
*Corresponding author: Forozan.novin@yahoo.com, gh.hossin.kiani@gmail.com

Keywords

Abstract

Prohibition
estifa
exploitation
takeover
legitimate
illegitimate
Law
Jurisprudence

Almost in every legal system, Jurists have paid special attention to the Principle of necessity and
sanctity of contracts. On the other hand, the moral proposition that no one should, without moral
justification, gain wealth at someone elses expense, forms the spirit of many civil and religious
principles. Illegitimate estifa(Illegitimate Exploitation) is when someone, without consent of someone
else, and at his expense, adds to his own property. Therefore, anytime someone takes-from the debtor the money that was owed to him twice; or takes the money that debtor owed to someone else; or gain
wealth through a corrupt contract; or takes someone elses fruit of labor without his consent; he has
committed illegitimate estifa . Legitimate estifa is when someone uses someone elses property, or
labor with the owners permission or through legal means.So long as using someone elses money or
labor is done through legal means, one cannot use the word estifa. For instance, renting is within legal
framework and using the benefit is not considered estifa. In this case estifa is integral to using ones
property, but if we cannot use other legal terms, we use the terms legitimate and illegitimate
estifa.Legal principles of illegitimate estifa is illegitimate gathering of wealth, not being guilty in
someones loss; also, earning profit due to collapse of balance between two properties. The lawmakers
must prevent formation of illegitimate wealth and force someone who has gained wealth at someones
expense to return the properties which he has unjustly taken over through estifa. Jurists use the
principle of consume not forbidden earningsto prove the necessity of consent in exchanges,
prohibition of consuming other persons property through usury fees, gambling, usurpation, and the like.

1.

Introduction

It has been stated in Irans Civil Code: Estifa is one of the sources of Forced Liability (zeman-e ghahri), and its real source is executing justice
and respect for common norms, and publics needs. Based on this, if someone commits estfa and exploits someone elses property without a
contract, must pay the owner similar wages, or the acquired earnings. Therefore, the necessity arising from exploitation is conditioned to being
something that normally earns wages or benefits in common parlance. Actions which are usually done as benevolence, or social etiquette dont
earn wages- although theymay lead to some other action-because in addition to observing norms of conduct, apparently, it has been done as a
voluntary contribution. For instance if a mother sees her child in danger of crossing the road carelessly which could lead to an accident, and asks
a passerby to prevent the child from crossing the road, he cannot demand wages for helping them. However, a person must be paid wages,
according to prior agreement, for works he has done; even if that type of work, usually, does not earn wages. Because, in this case, referring
work to someone, implies wage payment. The work is being done to provide a service in exchange for wages. In regulating legal relations, such
mutual consent is preferred over social norms. For instance, helping a child cross the street, or carrying an elderly across the street flood, usually
does not earn one wages. However, if someone does it in exchange for money, he has the right to receive it. It means that whenever someone
uses others labor or property; and there is no contract or agreement there to cause debt for the user; and his work is not done in illegal takeover
of property, waste, or cause any problem; the one who uses others labor has to pay wages.
One must be careful not to confuse zeman-e ghahri(forced liability) with zeman-e aghdi(contractual liability), for they overlap with each
other. For instance, one can see that although there has been a contract existing between parties; the suffered loss, however, has created a
new relationship- reasonably and conventionally speaking- between the parties, which is independent from the original relationship. For
instance, a traveler purchases a travel ticket and rides on the transportation companys bus towards the destination. If there is an accident on
the road, the driver is responsible for Diya payment (blood money) to the injured passengers. The important point here is that one cannot
consider drivers responsibility and necessity of Diya payment part of the contract between the transportation company and the passenger.
However, the fair paid by the passenger, and assuming responsibility by the transportation company is based on the transportation contract. It
is based on such a contract that the transportation company is expected to return the paid fair. The transportation company had the

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responsibility of taking the passenger to his destination, and it has failed to do so. The above situation is an example of co-existence of both
contractual and forceful liabilities. Now, we look at different types of exploitation and the effects of liabilities on them.

2-Meaning of Exploitation
Estifa, literally means: to take ones full rights, to re- take ones property from someone else (Dehkhoda,1951, P. 1868). More accurately, in
terms of conjugation, it is derived from vafimeaning to fulfill. In legal terms, especially in relationship to contract and Forced Liability, it
means to take advantage of, and personally profiting from someone elses labor without a contract (Article 336 Civil Code); or profiting from
someone elses labor with his permission (Article 337 Civil Code). Also the word applies to where one gathers wealth at someones expense
or someones labor (either through taking possession or using benefits from property). In fact estifa, in its legal sense, means: the action of
someone, without a contract with other party, benefitting from his property or from his labor.Furthermore,estifa means: when someone does
a job which usually pays wages, or the worker, be ready to do it habitually, he deserves the wages; unless it becomes clear that he intended to
do charity work.

2-1 Types of Exploitation

2-1-1 Legitimate Exploitation
Exploitation is legitimate if it is earned through consent, with permission from the owner of rights,or permission of doer of a job. Based on this
broad definition; where based on contract or based on law, someone has the ability of exploiting someone elses rights or labor, and take
advantage of it,Legitimate Exploitation has occurred. However, one must take notice that Legitimate Exploitation in its narrow definition, is
used where someone, through some legal means, take advantage of someone elses property or labor, or take possession of certain rights which
does not fit in the definition of mutual contract or unilateral obligation. For instance, someone who, according to rent contract, uses someones
property, or based on some labor contract encourages another person to perform a job, the benefit is not through Exploitation, but it is through
labor contract or rent contract (Katouzian 2006, P.240), Illegitimate Exploitation occurs when someone increases his own property at someones
expense-through using his property or his labor- without other persons consent. Therefore, if a creditor collects the loan twice from the debtor;
or collects someone elses money from the debtor, without the actual creditors knowledge or consent; or takes possession of someone elses
fruit of labor without his consent; he has committed illegitimate Exploitation. In the law of commerce, this action is called exploitation without a
cause (Article 319 Civil Code).
Some jurists have defined exploitation without a cause as the following: Someone without legal means and without a legitimate contract,
gaining wealth at someones expense, albeit with good intentions. Another word, exploitation without a just cause is when someone unjustly,
without a legal basis, without a contract, adds to his own property at someone elses expense. In this case, based on equity and justice, and based
on a principle widely accepted in many countries, the exploiter must pay the acquired wealth, or its equivalent, to the person who has suffered
from the exploitation (Safai, P.370). For no one should be able to gain wealth illegitimately at someone elses expense (Salehi, P.48). Here one
must pay attention to two points: First, there may be a Positive Exploitation(ijabi) which is about one adding to his own property,unjustly,
through Exploitation. The other type is Negative Exploitation (salbi)where one decreases his liabilities; like someone, illegitimately, decreases
the amount of loan he owes to others.
Second Point: Exploitation is not limited to real persons. It could be a legal entity, illegitimately, committingExploitation. What matters, is the
conventional terms of Exploitation. From this point of view, it does not matter whether it is a real person or a legal entity.

1-2 Points to Consider About Exploitation of Another Persons Property

1-2-1 Owners Permission: The element of permission helps one to distinguish Exploitation from hostile takeover.
1-2-2 Committing Exploitation of Profits: At its surface, Article 137 of the Civil Code deals with the cases where the one who commits
Exploitation gets permission from the owner, and uses the property based on the acquired permission. For instance, someone takes control of a
vehicle and drives a distance with it, to gather benefit from it (Exploitation of property).

1-2-3 Wages for Exploitation of Property from the Perspective of Tradition

Sometimes in their daily activities, people benefit from each others property without paying for it. However, in major endeavors, traditionally,
using someone elses property entails payment of a fee.The principle in this case is that the one who uses others property, must compensate for
it.

1-2-4 Permission for usage entails a fee

In cases where the permission for use is, explicitly or implicitly, free of charges; there is no payment involved for Exploitation; otherwise the
rule is payment for Exploitation, and free usage is exceptional (Katouzian, 2006 P.253).

1-3 the Object of Exploitation

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The object of Exploitation must be something that fits the definition of property. It must be something that fulfils a human need and there is
demand for it, something that people would pay for it, or give another item in exchange for it. In this sense, property, in addition to
ein(objectivity/visibility), includes material interests, financial, and legal rights as well. Therefore, the only items that can be evaluated by, or
converted to money qualify for Exploitation; such as the right to tahjir(fencing and planting public land, using rocks), the right to reside
somewhere, etc. In regards to intellectual property rights, also, one must say: These types of rights are dividedinto two distinct categories. First
type, are the ones which have material value and can be evaluated monetarily. Therefore, they can be passed on to others in exchange for money.
As for the rights which have spiritual or intellectual value; they belong to the creator of the work, and are inseparable from the personality of its
creator; and thus, they cannot be transferred to others. As a result, only the first group of rights can be studied for the purpose of Exploitation.

4-1 The Relationship between Exploitation and Forced Liability

So far, legitimate Exploitation was defined as ones exploitation of another persons property or labor with permission or legal authorization.
Legitimate Exploitation has been called, by some authors as quasi contract. It has been named as such, because there is an element of mutual
consent between the parties. However, since this consent is merely permission based, along with consent, and does not include all elements of
mutual consent; one cannot consider it a contract. The precondition for accepting such an opinion is assuming mutual consent as the fundamental
characteristic of Exploitation. However, this title includes the situations where there is no element of mutual consent. Another word, the above
mentioned Exploitation is beyond defective mutual consent. Despite existence of some mutual consent, this issue leads one to consider it Forced
Liability. Therefore, Illegitimate Exploitation which lacks the element of mutual consent, and does not fit within the regulations governing
contracts, is a legal issue and considered a Forced Liability.Becausethere is no agreement based on free choice to apply the regulations; the
governing regulations must, undoubtedly, be determined by the law.

1-5 Exploitation in Iranian Law

In Iranian Civil Code, Exploitationis dealt as Forced Liability, and because of that, if someone commits Exploitation and exploits someones
property or labor without having a specific contract; he must pay the wages or the acquired profit. There are three diverse views in the
Exploitation debate. What follows is a brief discussion of the three views:

1-5-1 Contract Doctrine and Forced Liability

Proponents of this viewpoint believe in the broad scope and definition of the phrase and do not wish to limit its meaning in the framework of
Articles 336 and 337. Furthermore, they define Exploitations essence beyond and regardless of legal realities and actions. It means that
anytime mutual consent is the basis for exploiting property or labor and the parties expect benefit as the result, there is a contract which can
be called Exploitation contract; but where there is no result expected, Exploitation is a legal, not necessarily a contractual matter.

1-5-2 Exploitation as a Contract

Some jurists, based on the notion of mutual consent between property owner and property user or between owner of labor and user of laborconsider Exploitation as a contract. From their perspective, Articles 336 & 337 of the Civil Code contemplates the matter as such, for the one
uses others property or labor upon consent. Thus, there is an agreement between the two over creation of obligation. The subsequent
commitment therefore, is the result of such an agreement (Mohaghegh Damad, Esmaeili 2009, No 7).

1-5-3 Exploitation as a Quasi Contract

Some other jurists have considered Exploitation as a quasi contract; for in all cases of Exploitation between two parties, there is a mutual
consent. Therefore, the nature of this of this agreement is similar to a contract (Naeini Khansari, n.d. P.99)

1-6 Religious Jurisprudence Sources of Illegitimate Exploitation

Quranic Verse 4:29 rejects consuming others property through forbidden means; Instead, distribution of wealth and moving property ownership
through legitimate means and through mutual consent has been commanded. The above Verse means Unless it is based on commerce and
mutual consent, do not use each others property in vain The Blessed Prophet is narrated to have acted in this way. He used to pay the labor
immediately before the workers sweat had dried. Hence, one can conclude that whoever has others property under control, must return it to its
owner; and whoever uses others labor through Exploitation must pay his proper wages. Imamieh Jurists have expanded the scope of these
principles. For instance, when a ferry was facing severe storm and some merchandise had to be thrown overboard, other passengers had to
compensate the owner of merchandise. The necessity to pay due wages emerges if the action of the labor is performed upon the order of the one
who exploits; otherwise a self motivated act does not create responsibility for others; albeit they benefit from it. Therefore if cuts the weed in
someones garden or put fertilizer in it; he cannot demand wages from the owner of the garden; unless unauthorized agency is
materialized(edareh-e fozouli). The user must be effective in such a manner that one can, from a conventional viewpoint, say that if it werent
for his interference; the job couldnt be done.

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7-1 Application of Religious Principles on Illegitimate Exploitation Cases

7-1-1 Application of the Principle of liability of Control on Illegitimate Exploitation
Many of Illegitimate Exploitations, where use of others property begins with its seizure and control over it, can be studied under zeman-e
yad(liability of control); it is about one takes control of other persons property by force and exploits its resources. Another example would be
someone keeps a property which is deposited with him as a trust and does not return it to its righteous owner(s). There are cases where, due to
unforeseen calamities, or the owners mistake; ones property is taken over by someone else; and despite duty of passing it to its righteous
owner, keeps and uses the property; all these cases the usurper is responsible for maintaining the property and all its accounts.

1-7-1 Application of the Principle of Waste on Illegitimate Exploitation

Waste means destroying property which could be profit or physical property. The same way that physical property can be destroyed, predicted
profit can be destroyed as well. Generally, waste of profit which is also interpreted as tafaviit-e manafe (killing the profits) can happen in two
ways. First, someone may waste a profit by taking advantage of it through Exploitation; second, someone without profiting the Exploitation
himself, prevent the owner from Exploitation. However it is the first case that is the subject of our discussion. It is when someone without
putting hand on a property, takes the profits from it through Illegitimate Exploitation, and therefore responsible wasting profits.

1-7-3 Application of No Harm Principle on the Illegitimate Exploitation Cases

Major jurists believe that the function of this principle is negation of harmful decree, meaning that the No Harm Principle is there to deal with
harmful rules. In case there are some harms from some order or decree; it will be annulled. But when the loss is the result of not applying the
decree, the No Harm Principle cannot, establish Liabilityfor compensating the loss. It is for this reason that some jurists have rejected
application of No Harm Principle on liabilities resulting from corrupt contracts, or liabilities for the lost benefits (Khoi 2003 Vol 6, P.402).
Although one may be able to rely on the No Harm Principle to prove Liability; still, this principle cannot cover the entire range of Illegitimate
Exploitations. Not in all cases loss affect someone, so that it could be compensated. Illegitimate Exploitation has often resulted in loss of profit
which according to many jurists cannot be considered plain loss. For instance, in taking advantage of patent rights which is intellectual property
rights; although the one who exploits, may make a large sum of money for himself, the owner of the rights is considered to have lost a limited
lack of profit amount.

1-7-4 Application of the Principle of Respect on Cases of Illegitimate Exploitation

Although there is no doubt about authenticity of the Principle of Respect, its application and scope in religious jurisprudence is not clear.
Some jurists have relied on its contents to prove other religious principles; yet, in other cases, the principle has been used on secondary matters.
While some jurists have usedit to prove the Contractual LiabilityDecree; others believe, given the documentations of the Principle of Respect, it
cannot be used to prove Liability Principle.For instance, late Khoi, after narrating Hadiths about prohibition of Muslims property states: The
purpose of these Hadiths is only dutiful prohibition and not lawful prohibition; therefore such Hadiths are far from proving Liability and the
purpose of their utterance is prohibition of taking over someone elses property without his permission. Therefore it becomes clear that
basically, there are major problems with using Principle of Respect to prove Liability arising from illegitimate Exploitation. Although, we may
be able to use Respect Principle to prove Liability Principle, there are doubts about its application on all cases of Illegitimate Exploitation.
In all cases of illegitimate exploitation, especially in immaterial exploitation, property take over does not apply. Sometimes, one without
undermining the Principle of Respect, increases his own wealth. The question, now, is whether one can consider the Principle of consume not
forbidden earningsa basis for Liability caused by illegitimate exploitation? Considering this principle, we are facing two choices:
A) Prohibition of taking over someone elses property and its exploitation in a manner inconsistent with conventional norms.
B) Responsibility of exploiter for compensating whatever he has exploited. Now, we must investigate if there is a relationship between these two
choices.

1-7-4-1 Regulative Decree Drawn from the Details of the Principle

Regarding proving Regulative Decree from the details of the principle, jurists have not elaborated enough; but, apparently, some of their
statements suggest its acceptance. For instance, late Khoi stated: consuming others property is forbidden regulatively and morally; and one
does not need to prohibit it through cancellation (Khoi, 2003 P.333). Late Boroujerdi, interpreting this Verse, stated: The purpose of this
Verse is that trades and exchanges that occur amongst you are two types. They are either forbidden and beyond religious ways, therefore
prohibited; or commerce is based on consent, and there is no objection to it, nay rather it is welcomed by religion(Bojnourdi, P. 217).
In addition to the above statements which are about acceptance of Regulative Decree from the categories of the principle; application cases of
the principle in Imamieh jurisprudence shows this matter very well that jurists havent had any doubt in using Regulative Decree. They have

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used basic categories of the above principle in many of the following cases: principle of corrupt exchanges, annulled exchanges such as
purchase of the imbecile, unauthorized purchase, proving conditions of the Option of Deception, establishment of necessity of contract, mutual
delivery of the object of sale, andwhich are all in the Regulative Decree Category. This point proves that notwithstanding fundamental
discussions about the relationship between Regulative Decree and Moral Decree, application of the principle consume not the property
acquired unjustly

1-8 Establishment of Liability Decree (hokm-e zeman)

After accepting the principle of Regulative Decree from the contents of the Law,

1-8-1 Basing the argument on the Law

It is impossible to determine the context and the conditions of law without considering its sources and principles. Therefore, it is reasonable to
see the conditions of the Illegitimate Exploitation could be understood and explained based on the main principle,prohibition of unjustly
acquired goods. In French laws, referring to unjust gathering of wealth, six categories are enumerated as the following: Gathering wealth,
Reduction of wealth, relationship between gathering wealth and reducing wealth, lack of cause, personal interest or guilt of the plaintiff, the Law
being accessory or insignificant. Now, one must see which one of the above conditions apply to the Illegitimate Exploitation and which ones
does not apply.
1-8-1-1 Gathering Wealth
Regarding this condition, one can say: the word akal (consume) in the Verse shows that the condition for emergence of Liability is to take over
someone elses property and exploiting it. Obviously consumption must happen first, so that we can speak of its permission or its liability.
Therefore, one can investigate Exploitation in terms of being Legitimate or Illegitimate.

1-8-1-2 Reduction of Wealth

In contrast to the previous case, one may not be able to accept reduction of wealth as a condition for realization of liability caused by
Illegitimate Exploitation. Because one cannot reach such a conclusion from the principles of Law, Although, in the Verse, the phrase
bainakom(amongst yourselves) has been used; it seems it has been used to prohibit mismanagement, squandering or waste of ones own property
;and reduction of property as a result of Exploitation of others cannot be concluded from the Verse. On the other hand, relying on common
sense, one can see wrongfulness of Illegitimate Exploitation and considers the exploiter responsible to compensate the righteous owner for the
loss. Whether, such Exploitation has caused any reduction of wealth or not, is irrelevant. Furthermore, not in every case, gathering property is at
the expense of others. If we consider Reduction of Wealth one of the indicators of Illegitimate Exploitation; many a wrongful take-over may not
be considered as such. For instance, one abusing his power or status gathers wealth, without necessarily reducing other persons wealth.

1-8-1-3 Relationship between Gathering Wealth and Reduction of Wealth

With cancellation of the second condition (reduction of wealth), the relationship between the two becomes irrelevant. However, despite this, it
seems in the laws regarding Illegitimate Exploitation, one needs to establish a connection between Exploitation and unjust means; in a sense that
one must prove unjust means has led to the unjust end of illegitimate Exploitation.

1-8-1-4 Lack of Means

In liability caused by Illegitimate Exploitation, considering the word albatel, meaning unjust in the Verse; and considering addition of ba-e
sababieh (causative ba) to the word batel; one may conclude that the existence of unjust means is a fundamental element of liability, and

in any case one must see the means for consumption is just or unjust.
1-8-1-5 The Rule being Accessory or Redundant
In conflict over Illegitimate Exploitation, if someone has two parallel claims going on; can he chose one of the two, or it must be limited to the
one related to Illegitimate Exploitation? In response, one must say that there seems to be no reason to prevent one from choosing both claims.
The reasoning of forbidden is unto you consuming the property acquired by unjust meansrefers to the general unjust means and includes any
consumption through unjust means. As soon as someone exploits other persons property, the exploiter will be liable. The plaintiff can also use
any of the two principles as a bases for his claim. Although he would choose the basis which can help him get a better compensation for his loss.
It is necessary to mention here that: where the pursuit of other claim is hitting a hurdle, plaintiff cannot ignore the obstacle and seek to settle his
claim for compensation through the Illegitimate Exploitation. This would be considered fraud in relation to law. In addition to the above
conditions, one can add lack of destroyers of Liability in addition to the means of Forced Liability, there are means which prevent emergence
of Forced Liability, or destroy it upon its emergence. Therefore, although take-over of others property may be an illegitimate act, but due to
existence of one of the destroyer means of Liability, the exploiter may be relived from responsibility.

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1-9 Legal Documentations of Illegitimate Exploitation

1-9-1 According to Article 147 of Iranian constitution:
Private property which has been acquired through legitimate means, is respected. Its limits are decided by the Law. Therefore, based on
the above Article, private property acquired through illegitimate means is not respected and is considered to be unjust. Article 49 of the
Iranian Constitution government is responsible for seizing illegitimately acquired properties and passing it to its righteous owner. This
Article has dealt with such wealth which has been acquired illegitimately. (Ghasemzadeh, 1999, P.234)

1-9-2 The Civil Code

Authors of the Civil Code, in Article 307, have considered Exploitation as Forced Liability without defining it. However, Articles 336& 337
appear to be related to Legitimate Exploitation. Article 336 states:whoever does a job that, conventionally, earns money, or that person is,
habitually, ready for it; doer deserves to earn wages for it, unless he intended to do charity work. And in Article 337 one can read: whoever,
based on explicit or implicit permission, exploit profit from someone elses property, the owner of the right deserves the identical wages unless
the permission had been acquired for free.
Therefore, regarding Article 336 which is dedicated to exploitation of other persons work, one orders the other to perform a job and the other
agrees. It means that the two reach a consensus over doing the job. Because the one who has ordered the job benefits from its completion; he is
responsible to pay the other his wages. Therefore the most important issue is determining the basis upon which one has ordered the other: Is this
a contract or it is a forced liability?
Also, in the assumption of the Article 337, the Exploiter uses the property with owners permission: It means that there is an explicit or implicit
consensus, regarding property exploitation has emerged. It is based on such a consensus that the law necessitates payment of the wages by the
Exploiter to the Exploited. This has surprised many authors, for they have wondered why law has demanded such a responsibility regarding
Forced Liability?
Contents of the Articles 336 & 337 may be expanded and interpreted broadly:
1- As one can see Article 336 deals with exploitation of other peoples labor, and Article 337 deals with exploitation of property. However, the
content of the Article 336 cannot be applied to properties; and the content of the Article 337 cannot be applied to labor. The distinction is based
on the priority and convention; otherwise, there is no problem with one taking over others property due to someone elses order; and
exploitation of others work has been done with permission and creating a contract.
For instance, if someone orders to a property owner to give his property to a needy person, or endow to charity; or a passenger order the other to
throw his merchandise overboard, and the other obey the order. The one who has ordered is liable for the property which has been used
according to his wish. Also, if a pupil, upon permission, attends a masters class and benefits from masters work; or a property owner benefits
from a salesmans authorized work to sell his property, must pay the wages for the exploited ones act. Therefore, it is reasonable to deal with
exploitation of labor and exploitation of property separately; and apply Articles 336 & 337 to both of them.
2- In Article 336, one of the conditions for binding the exploiter is that the work must have been ordered by him. However, it should be
mentioned that: Here the word order in this case does not mean order or command, literally. It must be interpreted as request. Because, except
in some rare situations, no one is in the position to order someone literally; and the law often deals at the general rules, not exceptions.
Therefore, is someone orders another, or make a request from another; and the other respond positively; and as a result of this agreement a job
gets done, the one who has make the order, must pay the market wages.
3- The necessity to pay wages may be rooted in contract and based on mutual consent; or it may have been ordered by law and have been forced
upon one by law. What matters is exploitation of others labor or property. Whether one benefits from it monetarily, in form of adding to his
wealth; or it is a non-material issue and upon demand of someone. Therefore, if the consensus is flawed for some reason( like the amount of
work, or how one has to do it); or consensus has not been achieved in a proper manner (like one side has agreed to it reluctantly); or the law may
not consider it effective(like agreeing on selling, repairing, or reforming someones property); payment of wages remains necessary. Yet some of
the examples may be classified as Illegitimate Exploitation.
It must be mentioned that the necessity to pay proper wages is for the legitimate or allowed work. If someone, upon order from someone else,
kills another human, jail or abduct him, cannot ask for wages.

1-9-3 the Law of Commerce

According to the Article 319 the Law of Commerce: If one cannot cash a promissory note, money order, or check within the five year
period; The owner of the promissory note can demand its sum, in property form, from the one who has used the money, against the interests

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of the other, without a cause. Therefore, it becomes clear that against the interests of the other, without a cause is a reason for liability that
can make one responsible up to ten years.

1-9-4 Necessary Conditions for Wage Payment

1-9-4-1 exploiting others Labor
The following conditions have to be met for making wage payment mandatory.
1-9-4-2 Wage payment becomes necessary if the workers labor is performed upon the order of Exploiter; otherwise, self motivated action of
someone does not create responsibility for other; although it benefits the other. Hence if someone cuts the weed of a garden, he cannot demand
wages from its owner.

1-9-4-3 Performance of the Labor which was exploited

The one, who has ordered the labor to be performed, is obliged due to the responsibility created by exploitation. Such an obligation begins only
after the labor completion.

1-9-4-4 Since the real purpose of Exploitation is promoting justice and respect for social conventions and dealing with public
needs; the obligation created by exploitation is conditioned to the labor having, in commons view, some utility, and something that fulfils a
societal need, worthy of paying wages for. The actions which are performed for the purpose of charity or social etiquette do not earn any wages,
albeit they are performed upon someones order. In addition to social acceptability, it has been performed for charity reasons.

1-9-4-5 Non-existence of Charity intention:

If someone does labor with charitable intentions, he cannot demand wages; Although, the work is worthy of wages in common parlance, or he
has prepared himself for receiving wages as usual, because the usual principle is that when someone does work for someone else gain wages;
then someone who is benefitting the work, must prove that the work is an exception to the norm.

1-10 Effects of Unjust Exploitation

1-10-1 Obligation of the Exploiter
1-10-1-1 Obligation to Submit the Property
When someone takes over a property unjustly, the law demands that the usurper return the property to its owner. The flip side of this obligation
is the right created for the payer of any sum to sue for the extra or wrongful payment.

1-10-1-2 Guarantee for the Loss of Income

The scope of usurpers obligation is not limited to return of the property or payment of its equivalent value; But also he is responsible for the lost
income or interest of the property-as long as it exists-as well; and the measure for his responsibility is the owners deprivation, not exploitation
of the interests or income from the property. Therefore if the Exploiter leaves the money which he has obtained from the Exploitation, he is also
responsible for the payment of the destroyed benefit.

1-10-2 Obligation of the Taker (Exploiter)

When someone consciously usurps a property; his work on the property, to improve it, does not earn him any wages; and he has to pay for the
maintenance as well. If there is any loss occurred, it is the occupation of the property that has caused it, and society has no commitment in
compensating a self imposed loss.However, if the taker, like the receiver, at fault; if there are expenses involved (for maintenance of the
property); and the owner is exempt from its payment; it is a benefit that he is gaining from the takers ignorance and must compensate for it
(Mohaghegh Damad 1995).

1-10-3 the Method for Evaluating the Compensation

In order to evaluate compensation amount, one must consider the distinction between net benefit and gross benefit and chose one as the
measure for evaluation. Another word, if the Respondent, while increasing his benefit, has suffered any losses; should this loss be deducted from
his profit, and the net benefit be calculated?

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The principle of forbidden is to you consumption of goods acquired through prohibited means has already been discussed; it bars us from
illegitimate take over and exploitation of other peoples property and labor. Based on this principle, if someone, unjustly, increases his wealth,
must take responsibility for returning the exploited surplus value. Therefore, one should not take the expenses- he may had in the process- into
account. Especially, the loss that the Exploiter has suffered may have been due to his own mistakes. Hence, one should not deduct this loss from
the compensation he owes.
As a result, it appears that in evaluating the compensation value to be returned-one must not pay attention to external factors, and as soon as the
above [Quranic] principle applies, one must consider the Exploiter fully responsible.

1-11 the Way to Proceed With the Property Recovery in Illegitimate Exploitation Cases
1-11-1 the way to Proceed with the Case
Here, one must recognize the legal characteristic of the conflict, then recognize the parties in the case. Finally, one must find out who, between
the parties, bears the burden of proof in realization of the liability for the Illegitimate Exploitation.

1-11-1-1 The Legal Characteristic of the Conflict

To determine the legal characteristic of the Illegitimate Exploitation, one must find out whether the purpose of the case is loss compensation or
recovery of the Exploited property? Considering the time period of the Illegitimate Exploitation, this principle makes it mandatory for the one
who has illegitimately exploited a property and added it to his own wealth; return the property. Therefore, it seems, this principle works well for
recovery of the exploited property. This line of reasoning, is strengthened in realization of liability for Illegitimate Exploitation, decrease in
property has no role. There are so many cases, where Exploitation has occurred without causing loss to others. Thus, the ultimate purpose of the
case is recovery of theproperty which has been used to increase someones wealth. Compensation for the loss , therefore, has a secondary
significance as is the case in the Option of Deception cases.

1-11-1-2 Identifying the Parties in the Case

In cases where the Illegitimate Exploitation causes loss to someone else, distinguishing the parties of the conflict is not difficult; Plaintiff is the
one who has suffered financial loss; Respondent is the one who has illegitimately added to his wealth. In these cases, legal status of the parties
do not matter, even an insane person can be represented by his legal guardian and represented in the case. Unlike Contract Decrees, neither
sanity, nor maturity, is the conditions for realization of liability. Like matures and sane people, minors and imbeciles can, be subject to
Contractual Decrees (Article 1216 Civil Code). However, in a case, if someone does not suffer direct loss, a question may arise: Who is
benefitting in an Illegitimate Exploitation case? And who is the Plaintiff in this case? In these cases, it appears thatSince Illegitimate Exploitation
has caused loss to beitul mal, (Public Treasury); the case must be put forward by the Sovereign (Article 49 Iranian Constitution). If there are
several Exploiters, given the conflict of the responsibility for liability with the law, and lack of proof, it appears that each has financially benefit
from it and each one of them is responsible for compensation.

1-11-1-3 The Burden of Proof

To realize the liability arisen from Illegitimate Exploitation, there are four conditions to be met: Exploitation, existence of unjust means, a
relationship between Exploitation and unjust means, and lack of destroyers of liability. Then, one must see who bears the burden of proof.

1-11-1-3 Exploitation
Undoubtedly, one who accuses the other of Exploitation bears the burden of proof. Therefore, plaintiff must prove that the respondent has added
to his own wealth at his expense or at the expense of public treasury. Because the starting assumption is lack of Exploitation, and the plaintiff
who claims occurrence of Exploitation, must prove it. In the present case where the question is the effect of ghabn (Deception), the plaintiff must
prove that, in dealing with the respondent, there has been a Deception; and an Illegitimate Exploitation has happened, and some property has
been exploited as a result of Deception.

1-11-1-3-2 Existence of Unjust (Illegitimate) Means

One may say, in this case: The one who claims illegitimacy of means, must prove it. Therefore, the plaintiff who claims that the respondent,
using illegitimate means, has increased his own wealth, at his expense, must prove the accusation, And the respondent does not need to prove
legitimacy of his take-over. In response, one must say that the principle is prohibition of encroachment on others property prohibition of using
unjust means. As in this, Deception, case; the illegitimate goal is acquiring prohibited wealth.
Therefore the one who has taken over others property, and has increase his own wealth, must prove that his takeover has been done through just
means, and he has justly added to his own wealth. To deal with this issue, one must refer to the principle of forbidden is to you consumption of
goods acquired through prohibited means unless through commerce and mutual consent. One must investigate and find out the content of the

Forouzan Alaeinovin *, Gholamhossein Kiani

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Verse applies to which party. Some jurists, as they interpret the Verse, believe that the exception stated in the Verse is mottasel type
(connected), and the Verse is emphasizing on the limitations of consumption and consensual commerce. Others believe that: Although the stated
exceptions are monghate type (disconnected); and therefore it is a case of limiting the means of consumption to consensual commerce fits
the condition; and the purpose is to exit from takeover, to respect publics right, and refraining from consuming property acquired through
unjust means. And since the means of takeover, logically speaking can be in two ways only, the content of the Verse proves the point. Thus, it
becomes clear that the principle is unrighteousness of the means of takeover, and the one who claims righteousness of his takeover, must
prove it. It means that the respondent must prove that his takeovers were through legitimate means and the plaintiff does not need proof of
unrighteousness of those means.

1-11-1-3-3 The Relationship between Exploitation and Illegitimate Means

This condition is about the Exploitation that has been done through illegitimate means. In such a way that one could say if there were not for the
unjust means; Exploitation would not have happened, and wealth increase would not have materialized. In this case, the onus of proof is on
plaintiffs shoulders; it means that he has to prove respondents Exploitation was as a result of , and through, illegitimate means, for the principle
is on lack of such relations[and means]. .

1-11-1-3-4 Lack of Destroyers of Liability (mosghatat-e zeman)

This condition has a preventative (salbi)aspect. It means that its existence has prevents advancement of the case.Therefore, respondent can, by
proving any of them, cause collapse of the plaintiffs claim. Therefore, if the respondent proves that although his exploitation of the plaintiffs
property was illegitimate at the start; the plaintiff had later allowed his takeover; he will be exempted from responsibility. Thus one can say that:
To prove Illegitimate Exploitation case, plaintiff must prove that respondent has exploited his property, and it had been a direct Exploitation, and
it had been as a result of unjust means (in our particular case, unjust means being Deception); Respondent, trying to free himself from
responsibility, must prove that his takeover had been based on just means or his liability has collapsed due to one of the Destroyers of
Liability(mosghatat-e zeman)

1-12 Compensation for the Liability Created Due to Illegitimate Exploitation in Iranian law
In the Irans Law of Commerce, Illegitimate Exploitation has been called unjustified use(Article. 319 Law of Commerce) Usurper benefits
from usurping others property without legal authorization; and since it has legal title, it is not Illegitimate Exploitation. If there is no other title
in law, it is Illegitimate Exploitation. Article 336 of Civil Code states: Anytime one , due to an order from someone else, does some labor which
usually earns him wages; or that person, habitually is prepared to do; the doer deserves the wages of his labor; unless it becomes clear that he
had had charitable purposes.According to this article there are four conditions for Legitimate Exploitation to occur.
1 Someone must have ordered it. The norm is non-charity. Although the plaintiff claims freeness of an act, he must prove it; otherwisethere is
no need to prove the labor is free.
2- Performance of labor must have been done by someone else. If someone has not prepared himself, and the work, normally, does not earn
wages; the work is not considered Exploitation which is supposed to yield benefits.
3- There should not be charitable purpose involved.
Article 337 Civil Code states that: Anytime one, based on explicit or implicit permission, exploit benefit from someone elses property; the
property owner deserves the resulted benefit, unless it become clear that there has been permission for profit, and therefore free of charges.

2.

Conclusion

The research indicated that the general principle no one should, without legitimate cause, gather wealth at someone elses cost; is a principle
that forms the spirit of much of legal principles. As God has commanded: You who believe, do not use up your wealth idly, [squandering it] on
one another The Quran 4:29 meaning do not use each others property in unjust ways, unless it is as a result of commerce based on mutual
consent. Therefore, consumption of others property through unjust (batel) ways has been forbidden. Instead, distribution of wealth through
legitimate ways and mutual consent has been commanded..
The appearance of the Verse prohibits consumption of others property in unjust ways. However, the word consume(akal), in this principle is
about possess and takeover. Therefore, the meaning of the principle, in brief, is about Prohibition of illegitimate possession of others
property. This is what is meant by illegitimate Estifa(Illegitimate Exploitation).
Forbidden is to you consumption of property acquired in unjust ways is a general principle and view point in Islamic legal system which
overshadows other principles; especially Means of Liability asbab-e Zeman contain this general principle within themselves. However if it is
stated that: In property take over, the usurper is responsible for the property and interests of the one whose property has been taken over; it is
because consumption of the unjustly acquired property is forbidden; ot it is stated that whoever uses others property or labor, must pay the
wages, it is because from Islamic perspective on one can, without a legitimate cause takeover someone elses property.

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In Irans Civil Code, as well, Exploitation has been mentioned as one of the causes of responsibility. The title Exploitation is mentioned in the
chapter dealing Forced Liability (Article 307, section 4). Although, in Articles 336& 337 Exploitation has been mentioned in a limited sense;
and the legal regulations deal with cases that exploitation of someones property or labor is done with his own participation; but this
participation, sometimes, does not lead to consensus, and makes Exploitation Illegitimate. In terms of equity as well, it does not matter if the
Illegitimate Exploitation is done upon order of the Exploiter; or as a result of action of a third party, or external event. What matter in this regard,
is collapse of the balance between properties, especially compensation of misery of the one who has suffered a loss? From this perspective, it
doesnt matter if, in the path of proper use, there has been a mistake, or if the actions were legitimate. It doesnt matter who did the Exploitation,
and who benefitted from it.One of the possible solutions is referring the matter to the rules of civil responsibility, and prevention from harm to
others. From this perspective, consuming others property through unjust and illegitimate means is considered unjust harm to others which must
be avoided. Therefore, the same way that in Civil Responsibility, one can seek compensation for the unjust loss he has suffered due to other
persons Exploitation; the one who has suffered a loss, can seek compensation from the wrongdoer who has caused it by increasing his own
wealth unjustly. In both cases, loss is unjust, and committing harm is illegitimate. In Civil [litigation] laws, unjust waste of others property is
not acceptable (mobah). In, unreasonable usage of property, the Lawgiver does not approve consumption of others property, or exploiting his
labor. Therefore, the la zarar, no harm principle; applies to both cases and there is no need for institution of a new law.

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