Disintegration of Mortgage in Imami Jurisprudence and Iranian Law: A Study Based on Article 19 of 2014 Act on Elimination of Production Obstacles for Improving the Country's Financial System

Document Type : Original Article

Authors

1 Assistant Professor, Department of Private Law, Faculty of Literature and Humanities, Shahrekord University, Shahrekord, Iran.

2 Master of Private Law, Faculty of Literature and Humanities, Shahrekord University, Shahrekord, Iran.

Abstract

One of the important questions regarding the mortgage is the disintegration or non-disintegration of the mortgage due to the falling of a part of the debt. Although Article 783 of the Civil Code prohibits the disintegration of mortgages, the provisions of this article seem to apply only to cases where the mortgagor, the mortgagee, the mortgage contract and the debt are units. There is no consensus in Imami jurisprudence and case law regarding the cases of mortgage disintegration. In Imami jurisprudence, the criterion of mortgage degradability is the number of mortgage contracts. However, there is a difference between them in the application of the multiplicity and non-multiplicity condition of the mortgage contract (the criterion of a single or multiple mortgage contract) and this difference in criteria leads them to disagree on the subject. Contrary to Imami jurisprudence, such a criterion was not presented in the case law. However, cases of mortgage disintegration have been identified and studied. However, jurists have not examined these cases in detail. Article 19 of 2014 Act on Elimination of Production Obstacles, on its territory (loans paid by the banking network to production units), accepted the sharing of mortgages in proportion to the payment of the debt and limited Article 783 of the Civil Code. Articles 113 and 119 of the Regulations for the Execution of the Provisions of Enforceable Official Acts also admitted the next multiplicity of mortgagors. In this research, while examining the voluntary and involuntary causes of mortgage disintegration, the advantages and disadvantages of Article 783 of the Civil Code and the shortcomings of the Civil Law in mortgage disintegration are revealed.

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References

  •  

     

     

    • A group of authors (2010), Encyclopedia of Fiqh of transactions (section of al-fiqh general and Comparative), (available in the software of Maktaba al-Shamilah). [In Arabic]
    • Ameli, Zain-al-Din-bin-Ali (Second Martyr), (1993) Masalak-al-Afham In the description of Sharia'-ul-Islam, volume 4, Qom, Al-Maarif al-Islamiya Institute, first edition. [In Arabic]
    • Bariklo, Alireza (2008), Civil Law 7, specific contracts 2, cooperative, Suretyship and Permissive contracts, Tehran, Majd Publications, first edition. [In Persian]
    • Bojnordi, Seyyed Hassan (1998), Fiqh rules, Volume 6, Qom, Al-Hadi Publishing. (available in the software of Maktaba al-Shamilah) [In Arabic]
    • Emami, Seyyed Hassan (1993), Civil Law, Volume 2, Tehran, Islamic Bookstore Publications, 8th edition. [In Persian]
    • Fakhrul-muhagheghin Hilli, Muhammad bin Hassan (1968), Explanation of Al-Favaed In the description of the bugs of Ghavaed, Vol. 2, Qom, Ismailian Publishing. [In Arabic]
    • Golpaygani, Mohammad Reza (1993), Human guidance, volume 2, Qom, Dar al-Qur'an-al-Karim, first edition. [In Arabic]
    • Hamdani, Reza bin Mohammad Hadi (1997), Misbah al-Faqih, vol. 14, Qom, Al-Jaafari institut for Heritage Revival. [In Arabic]
    • Hilli, Allameh Hasan bin Yusuf bin Motahar (1993), Qavaed al-Ahkam, Volume 2, Qom Seminary Teachers Society, Islamic Publication Institute. [In Arabic]
    • Hilli, Allameh Hasan bin Yusuf bin Motahar (2000), Expression of Sharia rules in the Imamiyyah religion, volum 2, Qom, Institute of Imam Sadiq (peace on him). [In Arabic]
    • Hilli, Allameh Hasan bin Yusuf bin Mutahar (1994), reminder of jurists (New edition), Volume 13, Qom, Al-Al-Bayt (Peace be upon them) Institute for Revival of Tradition. [In Arabic]
    • Hosseini Ameli, Muhammad Javad bin Muhammad (1999), Miftah al-Karamah in explain Qavaed al-Allamah (New edition), Volume 15, Qom, Qom seminary  scholar”s community   Islamic Publication Institute. [In Arabic]
    • Ibn Maudood al-Mosali (Abdullah bin Mahmud bin Maudood al-Mosali al-Baldhahi), Majid al-Din Abu al-Fazl al-Hanafi (2010), Al-Ekhtiyar Lettalil al-Mukhtar (Athority for justifying of AL.Mukhtar), (Fiqh al-Hanafi), Vol 2. [In Arabic]
    • Jafari Langroudi, Mohammad Jaafar (1991), Civil Law (Mortgage -Settelement), Tehran, Ganj Danesh Publications, second edition. [In Persian]
    • Katouzian, Nasser (1999), Civil Law, Volume 4 (Permissive Contracts –Suretyship), Tehran, Publishing Co., Ltd. in collaboration with Bahman Borna, 3rd edition. [In Persian]
    • Katouzian, Nasser (2012), General Theory of Obligations, Tehran, Mizan Publishing, second edition. [In Persian]
    • Khomeini, Seyyed Ruholah (2013), Tahrir al-Wasila, volume 2, Tehran, Institute for editing and publishing the essays of Imam Khomeini. [In Arabic]
    • Mohaghegh Karki, Ali bin Hossein (1994), Jami al-Maqased in explain Qavaed, volume 5, Qom, Al-Al-Bayt (Peace be upon them) Institute for Revival of Tradition. [In Arabic]
    • Mousavi Sabzevari, Abd al-Ali (1993), Mohazab al-Ahkam In permitted and prohibited expression, vol. 21, Qom, Al-Sayyed Abd al-Ala al-Sabzwari. [In Arabic]
    • Najafi, Muhammad Hasan (2001), Javaher al-Kalam in explain Sharaye al-Islam (New edition),  volume 13, Beirut, Arab Heritage Revival House, 7th edition. [In Arabic]
    • Rafi'i al-Qazwini al-Shafi'i, Abu al-Qasim Abd al-Karim ibn Muhammad ibn Abd al-Karim (1997), Al-Aziz Sharh al-Vajiz, volume 4, Beirut, Dar al-Kutb Al-Alamiya. [In Arabic]
    • Tabataba'i Karbalai, Ali ibn Muhammad Ali (1984), Riyadh al-Masael (old edition), vol. 1, Qom, Al-Al-Bayt (Peace be upon them) Institute for Revival of Tradition. [In Arabic]
    • Tousi, Muhammad bin Hasan (1968), Detailed description of Imami jurisprudence, vol. 2, Tehran, Mortazavi library. [In Arabic]
    • Zuhayli, Wahbah bin Mustafa (no date), Islamic jurisprudence and Its reasons for al-Zuhayli, volume 6, Damascus, Dar-Al-fikr, 4th edition. [In Arabic]

     

Journal of Comparative Law
Volume 6, Issue 1 - Serial Number 9
April 2022
Pages 163-185

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History

  • Receive Date: 05 February 2021
  • Revise Date: 26 April 2021
  • Accept Date: 18 July 2021

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