List of Articles رهن

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  1 - A Comparative Study of Mortgage Contract and Its Establishment in Iranian and American Legal Systems
  Farideh  Shokri
  Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any differen More

  Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any difference between the two stages of creation and establishment of the right of pledge. Even in the case of immovable mortgage it is obligatory to register the document. On the other hand, in Iranian legal system the principle of transferability of the mortgage – however briefly – has been officially recognized so that conclusion of a mortgage contract and the establishment of the right of pledgee is no obstacle to future transfer of mortgage or pertinent rights by the mortgagor in case it does not violate the rights of the pledgee. The rule of this principle, without special stipulations on establishment of the rights mentioned in the contract such as obligation to register the mortgage, will sometimes raise consequences such as dispute in discerning priority, reference to the superficial contracts containing the date of priority and consequently violating the rights of pledgee as well as legal dispute in courts and probably penal procedures. Whereas in many legal systems across the world, the US legal system for instance, there is a distinction between the two stages of concluding the mortgage contract or a pledge and stipulations for the establishment of the rights of mortgage for either side. In these legal systems, a distinction has been made between movable and immovable mortgage and establishment of the right of pledgee on each case requires finishing certain formalities otherwise, the right of the pledgee will be incomplete and the priority will be with the other party finishing the procedure. The question raised in this paper is this: Is it possible to make a distinction between the two stages in Iranian legal system with respect to the existing jurisprudential laws and the enforceable legal texts? Manuscript profile
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  2 - Mortgage of Jointly Owned Property in the Jurisprudence of Five Religious Schools of Law and in Iranian Law
  Saeed  Farsad
  Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mea More

  Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mean possession of the jointly owned property. It is clear that submission of the jointly owned property to the mortgagee, in cases where it requires possession of the shares of the other partners, requires obtaining their consent. In cases where the mortgager submits the property to the mortgagee without the consent of the other partners, he shall be considered legally responsible for that. However, in cases where the submission of property means evacuation, the submission of the property does not mean possession of the shares of other partners, thus according to the jurisprudence of the above-said schools of law it does not need their consent for evacuation. This paper intends to study these issues in the jurisprudence of the abovementioned five schools of law and in the Iranian law. Manuscript profile
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  3 - Legal-Jurisprudential Analysis of Conditional Sale Option in Relation to Transactions with Right of Restitution
  Saeed  Karami
  Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge ( More

  Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge (rahn) contract. The conditional sale can be analyzed in two ways: First, the conditional sale involving the contractual relationship between mortgagor (seller) and mortgagee (buyer) stipulated in Article 34 of the Law on Registration of Deeds; Second, the conditional sale that does not govern the contractural relationship between the seller and buyer, and it is a real sale under articles 485-462 of the Law. The conditional sale governing the contractural relationship between the mortgagor and mortgagee is an instance of transaction with the right of restitution (Article 33 of the Law). This is why the law has considered the request for registration of the property in conditional sale as a right for the debtor, because in this type of conditional sale the buyer does not intend to conclude a contract of sale. Any negligence of this criterion will raise ambiguities: First, any conditional sale will be taken as the one with the right of restitution, whereas it is otherwise. Second, the real conditional sale has been well stipulated in Article 399 of the Civil Code; therefore, all sales stipulated in Article 399 of the Civil Code must be considered as the transactions with the right of restitution. It is clear that the existence of the element of option in a sale contract does not mean it is an instance of transaction with the right of restitution. Articles 33 and 34 of the Law on Registration of Deeds are not exclusive to provisions of Article 459, because this article is not about the conditional sale governing the contractual relationship between the mortgagor and mortgagee, whereas articles 33 and 34 of the Law govern such relationship. Manuscript profile
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  4 - A Comparison of Mortgage Contract and Transaction with Right of Restitution through an Approach based on Existing Precedent
  Gholamali  Sedghi
  Abstract: Transaction with right of restitution refers to any supplementary and commutative contract in which the assignor reserves the right for himself to reject consideration and restitute transferred property. In view of the law on registration of deeds and real est More

  Abstract: Transaction with right of restitution refers to any supplementary and commutative contract in which the assignor reserves the right for himself to reject consideration and restitute transferred property. In view of the law on registration of deeds and real estates, transaction with right of restitution is a combined contract of rendable property and mortgage. There are, however, differences between transaction with right of restitution and mortgage including this that the contract interests belongs to the transferee in the transaction with the right of restitution while corpus interests of the mortgaged property belong to the mortgagee. By virtue of Article 324 of the law on registration of deeds and real estates and the existing precedent, all the benefits belong to the purchaser and given religious rules and regulations, this stipulation is the same as the debt interest. However, if we ignore the right of the purchaser to collect interests, given the degree of inflation and devaluation of money, we have equally ignored commutative justice in his case. Therefore, belongingness of the interests to him seems to be possible via bartering and realization of relative balance. Manuscript profile