The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time
The condition that the mortgaged property belongs to the mortgagor in case of non-payment of the debt on its due date is one of the conditions included in the mortgage contract. There is a difference of opinion regarding the status of this condition in Iranian jurisprudence and law. The nullity of t...
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Shahr-e- Danesh Research And Study Institute of Law
2024-09-01
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| Series: | پژوهشهای حقوقی |
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| Online Access: | https://jlr.sdil.ac.ir/article_166820_206be83b66b485107958963112a66aa9.pdf |
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| _version_ | 1841544657046077440 |
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| author | Mahdi Hamze Howeyda Jamshid Shiri |
| author_facet | Mahdi Hamze Howeyda Jamshid Shiri |
| author_sort | Mahdi Hamze Howeyda |
| collection | DOAJ |
| description | The condition that the mortgaged property belongs to the mortgagor in case of non-payment of the debt on its due date is one of the conditions included in the mortgage contract. There is a difference of opinion regarding the status of this condition in Iranian jurisprudence and law. The nullity of this condition is a dominant and overwhelming theory among Imamiyyah jurists, but there is a difference of opinion among jurists in this regard; This legal act is essentially a type of performance guarantee (bond) regarding the mortgage obligation, which is included in the main contract as a condition attached to the contract. But under which types of conditions are included in the contract, it seems that more consideration is required. Considering the nature of the condition of the adjective, it is obvious that the inclusion of this condition is excluded from the subject of the discussion and the issue should be investigated regarding the condition of the result and the condition of the verb; This condition can be proposed in the mortgage contract in the form of a result condition as well as a verb condition, and each of them has its own status and effects, and at the same time, it can be a type of obligation that the parties have foreseen for breach of contract. In the judicial procedure, even without consensus, the tendency to invalidate the condition of the mortgagee's belonging to the mortgagor is strong. According to the articles of the registration law and the principles of legal interpretation, it seems that the principle is on the validity of such conditions, unless it is proven, the principle of repudiation has not been observed. |
| format | Article |
| id | doaj-art-4a01b50247b04bd1839632646715b5e9 |
| institution | Kabale University |
| issn | 1682-9220 2717-0020 |
| language | English |
| publishDate | 2024-09-01 |
| publisher | Shahr-e- Danesh Research And Study Institute of Law |
| record_format | Article |
| series | پژوهشهای حقوقی |
| spelling | doaj-art-4a01b50247b04bd1839632646715b5e92025-01-12T12:21:52ZengShahr-e- Danesh Research And Study Institute of Lawپژوهشهای حقوقی1682-92202717-00202024-09-01235850953810.48300/jlr.2023.345099.2067166820The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on TimeMahdi Hamze Howeyda0Jamshid Shiri1Assistant Professor, Nahavand Higher Education Complex, Bu-Ali Sina University, Hamedan, Iran.PhD Student in Private Law, Faculty of Law, Kharazmi University, Tehran, Iran.The condition that the mortgaged property belongs to the mortgagor in case of non-payment of the debt on its due date is one of the conditions included in the mortgage contract. There is a difference of opinion regarding the status of this condition in Iranian jurisprudence and law. The nullity of this condition is a dominant and overwhelming theory among Imamiyyah jurists, but there is a difference of opinion among jurists in this regard; This legal act is essentially a type of performance guarantee (bond) regarding the mortgage obligation, which is included in the main contract as a condition attached to the contract. But under which types of conditions are included in the contract, it seems that more consideration is required. Considering the nature of the condition of the adjective, it is obvious that the inclusion of this condition is excluded from the subject of the discussion and the issue should be investigated regarding the condition of the result and the condition of the verb; This condition can be proposed in the mortgage contract in the form of a result condition as well as a verb condition, and each of them has its own status and effects, and at the same time, it can be a type of obligation that the parties have foreseen for breach of contract. In the judicial procedure, even without consensus, the tendency to invalidate the condition of the mortgagee's belonging to the mortgagor is strong. According to the articles of the registration law and the principles of legal interpretation, it seems that the principle is on the validity of such conditions, unless it is proven, the principle of repudiation has not been observed.https://jlr.sdil.ac.ir/article_166820_206be83b66b485107958963112a66aa9.pdfcorollary conditionmortgaged propertytransaction with the right of restitutionsuspended saletemporary mortgage |
| spellingShingle | Mahdi Hamze Howeyda Jamshid Shiri The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time پژوهشهای حقوقی corollary condition mortgaged property transaction with the right of restitution suspended sale temporary mortgage |
| title | The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time |
| title_full | The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time |
| title_fullStr | The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time |
| title_full_unstemmed | The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time |
| title_short | The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time |
| title_sort | condition of belonging the mortgaged property to the mortgagee providing non fulfillment of the debt on time |
| topic | corollary condition mortgaged property transaction with the right of restitution suspended sale temporary mortgage |
| url | https://jlr.sdil.ac.ir/article_166820_206be83b66b485107958963112a66aa9.pdf |
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