Sanction of sale of mortgaged property: study on comparative Jurisprudence

Type : Research Article

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Abstract

The thought of lack of influence of the sale of mortgaged property is a famous one. However, a closer study in jurisprudence shows that jurists have considered various solutions regarding the lack of influence of the sale of mortgaged property. The first solution is the invalidity of the sale. The second solution is the lack of influence of the sale (among the adherents of this view, there is disagreement about the survival of the right of the mortgagee. The first group maintains the right of the mortgagee over the mortgaged property, while another group believes that permission causes the fall of the mortgagee’s right, and finally, a third group consolidates the right of the mortgagee over the price, namely the substitute of the mortgaged property). The third solution is the unenforceability of the contract against the mortgagee, which is a branch of the theory of lack of influence. Finally, some have considered the sale of mortgaged property to be correct. Among those who adhere to the validity of the sale, one group maintains the right of the mortgagee over the mortgaged property, while a smaller group believes that the right is established over the price (substitute). This article studies these diverse ideas in various juridical schools.

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  • Received: 21 April 2016
  • Revise: 05 July 2016
  • Accepted: 20 August 2016

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