Possessions inconsistent with mortgages subject to article 793 of Civil

Code governs transferring and demanding possession. Amending

possessions subject to article 794 of Civil Code appear in harmless

possessions, however these two articles are ambiguous and unclear, and

neither meet social interests and necessities nor control the relations among

persons. The contracts that lead to transfer and lose of the possession of the

object such as endowment, transaction, conveyance and donation of

collateral property by mortgager is apparently in conflict with the

mortgagee’s rights, but this article tries to provide a solution for such

apparent conflict so as to prevent the admission of action for drawing up of

notarial deed of the mortgaged property based on the analysis of the nature

of mortgage transaction.

Concerning the effect of mortgagee’s consent, for which different effects

have been expressed by the jurists and lawyers, some individuals believe

that mortgagees forfeit their right to the collateral property with the consent

to transaction, unless a contrary condition is stipulated on the time of

giving the consent, and some other persons believe that the mortgagee’s

consent means admission of the validity of transaction as well as the

mortgage. However, it seems that since the mortgagee’s rights is stipulated

in the transfer deed, the mortgagee’s right to the collateral property is not

forfeited, and in case of transfer, it seems as if the mortgagee declared his

consent to third mortgage. Therefore, the effect of mortgagee's consent is

his/her agreement with the transfer of collateral property, and if the

mortgager’s debt becomes mature and remains unpaid, the mortgagee will

be entitled to demand the settlement of the debt through selling the

collateral property.

In Egyptian Law, same as French Law, the rules and opinions of Egyptian

lawyers specify that possessions of collateral property by the mortgager do

not damage the mortgagee's right, and transfer of the object and interests,

as possessions, is not inconsistent with the mortgagee's right.

There is no clear statement in Civil Code concerning the effect of

transacting pledged assets (movable and immovable) without the consent of

mortgagee. Using reliable juridical and legal references, the present article

provides some solutions to its acceptance. Currently, the purpose of

“invalid” in article 793 of Civil Code that some individuals consider it as

null and some others as correct, while construing it as “protection of

mortgagee's right”, is not known.

In the present article, the mortgage transaction with similar natures, like

transaction with the right of restitution, is considered as the right of

‘Moraei’ for mortgagee, and conditional contract and mortgage by order of

court were compared in France and Iran. In the last chapter, precedent no.

620 of the year 2007 by General Board of Supreme Court that resulted in

more diversity of views has been reviewed and criticized in detail, and

considering the progressive opinion of late Sheikh Ansari about other

trades and jurisprudences that both accepted the sales of mortgaged

property without construing it as null and reserved the mortgagee’s right

and provided some suitable solutions to add the rights of mortgagee and

buyer of mortgaged property, they have been legally analyzed and

compared so as to save Iranian Judicial system from such confusion.