جستجوی مقالات مرتبط با کلیدواژه "رهن منفعت" در نشریات گروه "فقه و حقوق"

In article 774 of the civil code following the well-known opinion in fiqh, the void of the pledge of intangible assets has been specified. The important bases of the void of the pledge of intangible assets have been codified the inalienability of the seizure of the pledged intangible assets and the lack of providing trust and the failure of the payment or settlement of the debt. However, all these cases in fiqh have been questioned. In the legal system of Iran, many regulations have been enacted latter to the civil code that they have no consistency with the traditional rules of the pledge. Some of them have excluded the seizure of the pledged intangible assets from the provisions of the validity of the pledge and some others have recognized the definite nontangible assets such as credits and stocks of guarantee are collateralizable. On the other side, the voidance of the pledge of intangible assets makes such assets to some extent go out of the economic cycle of the society and it causes losses in the business cycle and deprives the property’s owner from the complete benefit of his asset. All these factors make an endeavor for knowing intangible assets be necessary. There are five important approaches have been assessed in this paper which are: utilization of agreement with a no-name, utilization of the Agreement of Pledge utilization of transactions with the right of redemption, acceptance of the implied abrogation (implied appeal) of articles 774 and 772 of the civil code and their exclusion of jus cogens (compelling law -peremptory-).

According to the famous belief of Shi'a canons, for mortgage contract to be valid, capability of grasping in mortgaged property and subsequently to be objective are considered as requirements and hence hypothecation of interest is void. This is due to the fact that profits are not considered to be objective and as a result they are not graspable. Iranian legislature also complies with the mentioned belief and in Article 774 of civil code, hypothecation of interest is regarded to be invalid. The present article will deal with some evidence, regulations and doctrines, and after providing a critic of conditioned principle of grasping in mortgage contract, it will discuss possibility of benefit grasping. Finally, in order to determine the legal nature of interest mortgage in the present legal system, the paper will recommend the law maker review hypothecation of interest and use this legal institution economically.