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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| Main Authors: | , |
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| Format: | Article |
| Language: | English |
| Published: |
Shahr-e- Danesh Research And Study Institute of Law
2024-09-01
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| Series: | پژوهشهای حقوقی |
| Subjects: | |
| Online Access: | https://jlr.sdil.ac.ir/article_166820_206be83b66b485107958963112a66aa9.pdf |
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| Summary: | 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. |
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| ISSN: | 1682-9220 2717-0020 |