Document Type : scientific

Authors

• Mohammad jaber Ghanbari ¹
• hasan moatamedi ²

¹ Assistant Professor, Department of Private Law, Faculty of Law and Social Sciences, Payam Noor University

² Level3 scholar of Navvab Seminary of Mashhad

Abstract

In many cases of civil proceedings, the legislator has accepted the taking of suitable security from the plaintiff (such as the applicant for a temporary order), the objector (such as the third-party objector), or the addressee of the objection (such as the defandant's apeeal), without foreseeing the possibility of the third party providing security. The question is what form of contract is required for the provision of security by a third party and whether he is authorized to do so. The findings of the research, which is descriptive-analytical, show that considering the contract as a loan is consistent with a lend mortgage, in which the creditor and debtor are the parties, not a security provided by a third party, in which a third party (non-debtor) is one of the parties to the contract. The provision of security by a third party is not a guarantee either, because the effect of the concluded contract is attached to the object, so it is neither a promissory contract nor does the transfer of debt to debt. What has happened is consistent with a third-party mortgage. Since Imamiyyah jurists emphasize the provision of collateral in mortgage contracts and do not consider the debt relationship between the mortgagor and the mortgagee to be a condition, a third party (non-debtor) can provide security for another debt with the consent of the beneficiary of the security (the promisee). The legislator's stipulation to obtain security should also be considered as creating a legal cause of debt.

Keywords

• Civil Action
• Debtor
• Mortgage
• Suitable Security
• Third-Party

Main Subjects

• Private Law