نوع مقاله : مقاله پژوهشی
نویسندگان
گروه حقوق دانشگاه علوم اسلامی رضوی-مشهد مقدس
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Among the issues related to collateral that are disputed among jurists and legal scholars is the transfer of a collateral right following the transfer of the secured right. In other words, when the debt of the principal debtor is transferred, do the collateral guarantees remain in effect or are they extinguished? In response to this question, three perspectives—validity, nullity, and a nuanced view—can be observed among jurists, and legal scholars also hold differing opinions. The Iranian legislator, in Article 411 of the Commercial Code, recognizes the transfer of collateral following the transfer of the secured right, whereas the Civil Code does not explicitly address the acceptance or rejection of this issue. The present study, based on a descriptive-analytical method and using library and documentary sources to collect and analyze information, found that the approach affirming the validity of transferring collateral rights is more consistent with jurisprudential and legal principles. This view can be supported by reasons such as the principle of presumptive validity, the principle of istishhab (presumption of the continuation) of the collateral right, the preservation of the nature of the contract, the independence between the debt and the collateral, the absence of legislative prohibition, the practice of rational actors, and compatibility with the objectives of law in maintaining legal order and security in society. Additionally, since the condition of the debt residing in the principal debtor does not make the collateral dependent on the debt as a foundational contract, the collateral is not extinguished upon the transfer of the debt to a third party.
کلیدواژهها [English]
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