The Crime of Selling Another Person's Property (Foroush-e Mal-e Gheyr)
2024-08-22
Editorial note: This article cites specific statutory provisions (Article 238 of the General Penal Code, the 1929 [1308 SH] Act on Punishment Relating to the Transfer of Another's Property, and the 1988/2011 [1367/1390 SH] amendments). These citations should be verified, and this article should be reviewed by a member of our legal team before publication.
The illegitimate and unlawful transfer of any kind of property (movable or immovable) belonging to another -- whether the transfer concerns the property itself or its benefit -- by a person, whether natural or legal, to another person, in bad faith and through prior arrangements in the form of contracts, for the purpose of unlawfully obtaining material gain, is called the crime of transferring another's property (foroush-e mal-e gheyr). Under Article 1 of the 1929 (1308 SH) Act on Punishment Relating to the Transfer of Another's Property: "If a person, knowing that property belongs to another, transfers it in any manner -- whether the property itself or its benefit -- to another person without lawful authorization, they are deemed a fraudster (kolahbardar)."
Elements of the Crime of Selling Another's Property
The legal element: for the commission of any crime, the law makes the necessary provisions, and the crime corresponds to its punishment; the law defines the crime and announces its punishment. The legal element of the crime of transferring another's property is a combination of the two laws enacted in 1929 (1308 SH) and 1988 (1367 SH).
The material element: in this crime, the owner is not present at the scene of the crime to be deceived; rather, the act of transferring the property by the perpetrator itself constitutes the crime. This transfer is the material element of the crime.
The mental element: in the crime of transferring another's property, criminal intent must exist, with knowledge and awareness that the property belongs to another, and the crime is presumed to be intentional. If the act was committed unintentionally, this would run contrary to the presumption of intent in this crime, and further examination would be required regarding its punishment.
Punishment for Selling Another's Property
Article 238 of the General Penal Code addresses the punishment for this crime: under this article, a person who transfers another's property while knowing that the property belongs to someone else, and does so unlawfully, is subject to the crime of fraud and will be convicted accordingly. Under the 2011 (1390 SH) law, in addition to restitution of the property and payment of damages, a criminal sanction was also provided for this crime, and the perpetrator is characterized as a fraudster. Likewise, a transferee who, at the time of the transaction, knew that the transferor was not the owner, will be deemed an accomplice to the crime if, once the owner becomes aware that the transaction took place, the owner submits, within one month of becoming aware, a notice to the registry office, a notary office, or another government office to be served on the transferee informing them of the owner's ownership, and the transferee fails to act on it.
Selling Another's Share in Co-Owned (Moshaa) Property
Property owned by more than one person is called co-owned (moshaa) property. A co-owner has no right to transfer, in addition to their own share, the co-owned share of their partner to another person without the partner's consent. Doing so is itself the crime of transferring another's property. A co-owner of moshaa property may only sell their own share, and if they do not intend to transfer the other co-owners' shares, this act is not a crime.