الأطر القانونية لرهن ملك الغير : دراسة مقارنة في القانون المدني و الفقه الإسلامي

الملخص EN

The diversity of civil transactions necessitated documenting the guarantees that secure the risk of not extracting this matter requires insurance, and the latter of which is more prevalent is the mortgage contract, but this guarantee does not take place unless the person has the authority to dispose of it, and no other authority has the authority to grant rights to others more than He owns, and in this context, the problematic issue related to the form of a mortgage of the property of others has been raised, and the mortgage of the property of others is considered in all that is not the property of the person of the present person, but rather belongs to another person who is the "original owner of it", who is not a party to the mortgage contract, but rather the third party This king demonstrated, and it is noticeable that the Iraqi legislator in the Civil Code for This mortgage is known, rather it only as approved by the general rules, which require that a person be eligible for the current behavior or his deputy, if no longer term, no longer true, but leave depends on who has the authority to act in it.

Therefore, the problem is our research regarding the mortgage of the property of others in the extent of its validity in the civil law, as well as the position of Islamic jurisprudence towards it, in the difference in its validity, between its permissible and unlicensed, and we find that the mortgage of the property of others differs from the mortgage of the receiving money, which is void because it is speculative On the future money and the rule of deceit.

As for the difference in the mortgage of the property of others from the mortgage of the apparent king, we find that the law recognized the validity of the latter, and did not acknowledge that it would cease, as is the case in the mortgage of the property of others, with the aim of protecting the stability of legal actions and protecting others in good faith.

As for the issue of the permissibility of mortgaging the property of others, it is considered null and void relatively in Egyptian law.

As for the French, he considered it to be totally null and void, but in our Iraqi civil legislation it is suspended on vacation, meaning that it is valid if he authorizes it, or mortgages become the property of the wager, and this is in line with the jurisprudence rule “correcting the words first of his heroes”, but it is implemented only from The date of approval, and the latter produces its effects from the date of issuing the action, and not from the date of issuance of the declaration in order to avoid damaging the rights gained by others before the owner approves this mortgage.