التنظيم القانوني للأمانة غير العقدية ( دراسة مقارنة بالفقه الإسلامي )

Legal regulation of non-contractual trust ( A comparative study of Islamic jurisprudence)

The non-contractual trust is the unsecured money that has reached to the person’s hand without the permission of the owner or someone acting on his behalf, and it must be preserved and returned to its owner. It is characterized by several characteristics, the most important of which is that it is based on the law to legitimize it, because taking possession of it was not the result of the permission and license of the owner of the trust, and without any agreement between them.
And the non-contractual trust can be adapted in some of its resources by earning without reason, and by law in other resources, and it is not correct to adapt it to contract, unilateral will, harmful act, and right in possession. Despite the similarity of the non-contractual trust with some other concepts such as the deposit, borrowing and the possession, but it differs in many things, making it an independent entity from others.
A non-contractual trust is not realized unless it fulfills all its conditions, whether those related to the non-contractual trust as a whole, such as possession and the absence of the intent to own, the agreement and the license of the law, or those conditions related to the kind of the non-contractual trust, such as being from the funds owned by the non-trustworthy and which is valid to deal with, and the non-contractual trust is produced through a group Of the images, some of them refer to special cases, such as oppression, mistakes and ignorance of the owner, and some of them refer to the permission and license of the law, such as money that must be preserved for its owner and the endowment devoid of the guardian.
The non-contractual trust has many applications in the Iraqi and comparative civil law, and some of these applications are due to the legal act, and some to the legal facts, as well as other sporadic applications such as the mandate, the founded, treasure, minerals and antiquities.
If the non-contractual trust is fulfilled, it places several obligations on the trustee and the owner of the trust, and one of the most important obligations of the trustee is to preserve the trust and return it to its owner. As for the most important obligations of the owner of the trust, they are reimbursement of expenses, payment of rent, compensation for damage, notifications and news..
The principle is that the trustee does not guarantee the damage to the trust except with the realization of one of the reasons for the guarantee. The most important of these reasons are infringement, negligence, ignorance, failure to return the trust without right, denial and accusation. If one of these reasons is applied, or the trustee or the owner of the trust fails to implement their obligations, this leads to the tort responsibility of the offending party.
A non-contractual trust does not remain forever, as it ends with one of these reasons, which is the return of the trust, the expiry of the term, the trustee’s ownership of the non-contractual trust, the retraction of the trust, the destruction of the place, and the impossibility of restitution.