The Pay Back of the Debtor’s Property in Imami Jurisprudence
Dr. Ali A. Izadi Fard[1]
Soudabeh Asadian[2]
Abstract
Punishment (or pay) means that the creditor obtains the money of the debtor’s property who denied the debt. Legitimacy of the subject has been accepted as a way to close God in Imami jurisprudence and was referred and documented to the book, tradition and consensus. There are many differences among imami jurists in terms of the nature, effects and rules and laws, especially in terms that whether the pay (punishment) can be obtained by judge or as supposed, when achieving the right wouldn’t be possible by judge. In jurisprudence the certain right is a hypothesis that the debtor denies the debt by aware and there isn’t any possibility to achieve the right by judge; because the punishment is considered something special against the principle of respecting the occupation in other’s property. Regarding that, in Iran Law, there isn’t any document for suggesting the subject and in turn, respect for the private property is so important that the punishment wouldn’t be allowed.
Keywords: Pay (punishment), resorting to the right, debtor, activist, judge (ruler)
Introduction
In case of deny the debt by the debtor[3], the creditor can obtained conventionally the right through claim unto competent judge (ruler), proof the right by legal reasons, receive the mandate and its implementation. However, this may be blocked via a variety of reasons such as unavailability of a competent court, lack or inadequacy of the proof or other reasons; but be done in case of availability to the debtor’s properties. Does religious (Sharia) and law give the creditor permission to do so? The question is answered positive in the law and such way of demanding right is called “pay” or “punishment”. There are lots of ideas about the concept, the license reasons, requirements, constraints, effects and rules of the law. One of the main issues and of controversy is the license of pay, supposing that demand for the right would be possible through go to the judge. Whether the permission is the pay interest on the impossibility of demanding the right by going to the righteous judge or is a separate legal way that would be achieved by dispute. By changing the community’s circumstances, especially today, and establishing long and broad stand of the justice, this issue must be more thought and focused.
1
The essay is an attempt to investigate the pay conditions and the related issues in imami jurisprudence at first, the jurist’s idea will be declared and criticized then, and finally the issue will be reviewed in terms of the law.
Conditions of Pay (Punishment)
Most of imami jurists agree with legitimacy and license of pay, although there are disagreements about the limits, conditions, the quality and nature. It also referred to the book, tradition and consensus for the reasons of permission. However some conditions are necessary for the pay license, these may relate to the right that the pay is achieved by or the debtor and in-debted, the properties result of the pay, and through the pay. In case of the payable right, the right must obviously be legitimate, certain, present and available. The claim will be cancelled when the claimant oaths the denier debtor and the debtor swear to his debt and the creditor couldn’t claim for the pay anymore. (Morvarid, 1991, vol 35, p 403, Bojnordi, 1998, vol 7, p 222)
If the debtor confesses to his debt and willing to pay back to the owner, the punishment isn’t allowed. The jurists also confirm the issue. (Mohaqeq Helli, 1988, p 895, Ashtiani, 1983, p 343; that has claimed for consensus on not permission of punishment in this case) Because the authority of defining the property which must be paid to the creditor is primarily on the debtor, if he refuses, the judge is determined to rule. Then the debtor must attempts to receive licensee pay which means that he denies the debt despite aware. So it seems that it should be claimed for obtain the right while the debtor denies it; and as some jurist state: the punishment couldn’t be done of an ignorant debtor or the one who forgot the debt. (Narqi, 1998, p 461) There is disagreement in jurisprudence about the license pay when the debtor accepts the loan but refuses to pay.’ Some jurists believe in not licensee pay, but necessity of going to judge for requiring the debtor, (Fazil Hendi, vol 10, p 131) and others have been sentenced to licensee pay. (Mohaqeq Bohrani, vol 18, p 413) it seems that this assumption wouldn’t also be allowed to the licensee pay. In this case, the creditor must go to see the ruler (judge) and demands for the right by the debtor, because the judge is considered as the abstaining one and then there isn’t any distinction between the excused debtor and the non-excused one in unpaid. (Golpaygani, 1993, p101)
But the main question raised here is that: Do the punishment through making a claim and going to judge a separate way to obtain the right or just depend on the impossibility of demanding right through the court? The certain amount of the punishment relate to when the creditor wasn’t able to obtain his loan through the court[4]. Whether there isn’t any religious reason for providing the creditor’s right or there isn’t any righteous judge for him to go, some jurists (scholars) had included the assumption in which creditor must go to the judge by blame in other assumptions[5]; but there is disagreement among the jurists about the licensee pay in which the creditor has reason for his demand. (Rafa al-hikam- proposing the claim) Two main ideas can be derived in jurisprudence[6]:
1-No necessity to be free of the ruler (judge)
Mohaqeq Helli is doubted about license of obtaining the property as punishment in religious but preferred the licensee pay without the judge and instead documented to the permission for the punishment. Sahib Javahir is also believed in lack of necessity and attributed the mentioned statement to most f the jurists, and they didn’t pay attention to the opposed statements (means proposing the claim beside the judge) and claimed for the possibility of achieving consensus to the contrary and cited the generality of licensee pay. (Najafi, 1398, vol 40, p 390) according to the news, Seyed Yazdi had believed the strongest idea in the licensee pay in the assumption in which there is the possibility to go unto the judge. (Seyed Yazdi, 2008, p 718)
2- Necessity of Going to the Judge
The second idea i.e. necessity of being free of judge for demanding the right is attributed to Mohaqeq Helli in book Al-Mokhtasar al-manafe (the mentioned statement is against with the idea that he declared in his other book- Sharaia), Fazil Alabi- student of Allamah, in book Kashf al-Romooz (FAzil Alabi, vol 2, p 505) and Fakhr al-din in book Izah al-favaed also confirmed it. (Fakhr al-mohaqeqin, 1398, vol 4, p 400); according to the believers of the necessity of going unto the judge, the purpose is avoiding reasons of the licensee pay. They know, referring to verses and hadiths (narratives) weak, because the mentioned verses are generally expressed as the need to observe the quality and quantity of debt in same, and are expressed whether the owner of the right could obtain the right by self or by the judge. By studying the narratives, it is concluded that prescribing the punishment is based on the assumption that demand the right wouldn’t possible conventionally. For example, in Ibn Zarabi, the self ruler and his relatives are in-debtor, here, it is clear that it is impossible to demand the right through go to the appointed judge. (Sobhani, 1998, p 70) In addition, the main point is respecting other’s property without permission. Dominate other property is against the rule and should be limited to essential which is cancelled here. (Tabatabaei, 2001) It is also stated that the deputy governor is indebted and the solution is necessary and required for him when he be able to judge. But opponents of the necessity of elimination have responded to these arguments, do exceed, Shahid Sani says, is true for some reasons which is available here, (by reason it means the one for licensee pay). Sahib Javahir rejected the reasons of who believe in licensee pay: “Based on the mentioned reasons (reasons of the licensee pay), the basic (respecting to occupy other’s property) is wrong or void while it may be in conflict with the principle of no necessity to judge. He also claims about the deputy governor as an elicitation (Jihad in Islamic texts) against the submitted texts. (Najafi, 1398, p 490) Some jurist regarded Sahib Javahir’s viewpoint as weak and shallow, so the first pint is respecting to the other’s property in which the cancelling requires enough reason, and there is no reason for cancel in this principle because including the licensee pay in the possibility of demanding the debt through the judge is uncertain, therefore the principle of necessity to elimination is not able to conflict with the principle of respecting to the other’s property. (Sobhani, 1998, p 270)
There is a significant importance for the subject especially in the modern societies on which the court is established and everyone is able to go there to demand their right. However, there is controversial among the contemporary jurists about this. Some have permitted to punishment (pay) even in the assumption of being a judge (Khomeini, 2012, 437) and others have dedicated to the assumption in which demanding the right wasn’t possible through the court. (Fazil Lankarani, lesson apart from jurisprudence, discussion about judiciary, Mousavi Ardabili, 1981, p 493: that he believes no narratives and verses, are enough for permission for punishment in absence of judge, after he’d analyzed and studied everyone of them. Sobhani, 1998, p 70)
In evaluation, the idea of necessity to elimination seems stronger. The main part is respecting to the other’s property and the punishment is a special issue that should be observed as required. The required time is when demanding the right through the court be hard and impossible. People couldn’t chose one of them between the fight and willfully and revenge in financial strife to obtain the rights. Trueness of demanding the right (mentioned in Article 34 of the constitution) doesn’t mean that people could ignore their right, or be their own judge and executor. The duration in the above right between going to the court and ignoring the right is claimed not between the debate and arbitrary execution of the right. The historical background confirms the idea. The relate statements about licensee pay (permission for punishment) return to the period that the government and judiciary was on the authority of unjust rulers. (Ashtiani, 1977, p 345: that confirm the narratives about going to judge for licensee pay, and Fazil Lankarani, lesson Apart from jurisprudence, discussion of judiciary)
It should be noted that the case will be excluded of the concept of punishment by going to the judge, because the court doesn’t sentence to punishment today so the creditor implements it by self. If the right was proven in favor of the creditor, the implementation is subject to some special rules.
1-Punishment in the Related Law
The issuance of the punishment must be examined in the related laws after studying the jurisprudence. The punishment is a clear example of private justice and is incompatible with features of a developed legal system. (Mansouri and Mirshekari, 2011, pp 431, 432) It is also said that there are still bubbles of private justice in the law, for example, legitimate defense (Article 330 of the Civil Code and Article 625 of the Islamic Penal Code), the right of lien in transaction and marriage. (Madtin 377, 1085 of the Civil Code and Article 371 of the Commercial Code) The permitted killing (Note 2 of Article 295of the Penal Code) and murder in bed (Article 630 of Islamic Penal Code). Article 131 of the Civil Code and the last part of Article 131 can also be added to these cases[7]. Apart from criticisms about affects of the private justice, it should be noted that the legislator permits the person to act independently in the all mentioned cases while such permission wouldn’t allow to done in Iran Law and many other countries’ law. (Mir Mahmoud Sadeghi, 2011, p 169)
None of legal texts allow the creditor to demand the property. Instead, there are reasons for the prohibition. According to Article 47: “The private ownership that is known legitimate must be respected. The criteria and principles are determined by the law.” Article 49 of the same law also defined that the government is obliged to receive and pay back the wealth result of unlawful actions such as usury, extortion and so on. The order (sentence) must be performed by the government after study and research and legal proofing. Article 31 of the Civil Code is also declared: “Any property can be occupied except by permission of the court (law).” Therefore, the main part is respecting to people’s property and the outlaw needs enough reason. The legal relationship of people is also based on the legal system and ones could not refer to jurisprudence. The courts, as it has been said, may sometimes face with the punishment, and they should derived the principles and related rules of the authoritative jurisprudence texts. (Taghi Zadeh, 2011, p 181) This is also not accepted, because implementation of article 167 is possible when the judge was not able to find the sentence in the established laws while in the punishment, the legal texts are so enough so that is no need to juridical sources. The punishment is permitted in jurisprudence just because the reasons exclude the principle of occupying other’s property. But the present reasons of respecting other are property, in law, do not exclude the punishment and such lack of source do not compensate and borrow by juridical texts.