Non-Restrictedness of the Exchanged Items in Transaction Based on Imam Khomeini's Viewpoints

Among the conditions by the jurisprudents for correctness of a transaction is that the exchanged items should be non-restricted or should be free from encumbrance. On this basis, the jurisprudents do not allow the transaction of a mortgaged or endowed item. However, whether this condition is an independent one or not has not been discussed by the jurisprudents. The Iranian Penal Code does not mention non-restrictedness as a condition for correctness of a transaction, rather it mentions some of its referents such as transaction of a mortgaged or endowed item. In viewpoint of some jurisprudents, lack of existence of reason for encumbrance as a condition for correctness of a transaction, causes the condition of non-restrictedness in each referent of this subject to require a specific reason. Hence, according to some jurisprudents and jurists, encumbrance is a general title which hinders any interference which is in contravention with that specific right. Given the multiplicity of emergent referents regarding lack of being non-restricted and association of other’s rights in contemporary era, one may argue that being free from encumbrance is a condition for transaction, opposition to which would lead to the ineffectiveness of the deal.