شرطيت قبض در رهن در حقوق ايران و فرانسه

The Conditionality of Taking Possession in Mortgage in Iranian and French Laws

In Islamic jurisprudence , there are three different opinions on the relation between «taking possession)) and «contract of mortgage» as follows: 1-Taking possession is the condition for validity of mortgage, 2-0 Taking possession is the condition under which the contract of mortgage becomes irrevocable and 3- Taking possession is the mere effect of mortgage. According to the first opinion, mortgage is one of the contracts which are made after taking possession . Second the one says, mortgage is concluded without taking possession but prior to it , and is revocable; and, according to the third view , taking possession is solely the contractual effect of mortgage. It is understandable from sections 772 and 774 of the civil code that the first opinion has been accepted, something that is not so compatible with the realities of mortgage in current legal relations .In French civil law, mortgage is placed in different contractual frames that, in some of which ,taking possession , is not a legal condition.