Diverse Assembly; An inquiry into the rules of selling mortgaged property: A comparative study

There are different ideas about the rules of selling mortgaged property in Iranian Law and Islamic Law (Fiqh). This caused a wide divergence of opinion in the courts. The basis of this diversity is related to the question that whether this transaction should be considered in the category of possessions against the mortgagee’s rights or not? Whereas most of the Islamic jurists conceive such transaction to be invalid (Adam-al-Nofouz), contemporary jurists believe in the validity of it and jurisprudence has tended to this opinion.Examining various articles of the Iranian Civil Code shows that from the view of it, this transaction should be regarded as invalid which is confirmed with the permission of the mortgagee or redemption of mortgage.The present study attempts to explain logical basis of this view in Iranian and Islamic Law (Fiqh), resolve existing doubts and determine the rules and effects of this transaction. In this regard, with a comparative study, the rules of this transaction in French Law will be examined as well.