A Claim to Oblige the Seller to Release a Mortgage and to Draw up a Notarial Deed Concerning Transfer of a Collateral in the Judicial Precedent; Procedural Rules Concerning the Buyer's Claim against the Seller (Mortgagor)

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Safaei Seyyed Hossein; Javaherkalam Mohammad Hadi

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Paper Information

Journal: QUARTERLY OF LEGAL ENCYCLOPEDIAS Year:2022 | Volume:5 | Issue:14 Page(s): 106-130

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Information Journal Paper

Title

A Claim to Oblige the Seller to Release a Mortgage and to Draw up a Notarial Deed Concerning Transfer of a Collateral in the Judicial Precedent; Procedural Rules Concerning the Buyer's Claim against the Seller (Mortgagor)

Author(s)

Safaei Seyyed Hossein | Javaherkalam Mohammad Hadi | Issue Writer Certificate

Keywords

action to compel a mortgagee to release a collateral

action to oblige a seller to draw up a notarial deed

sale of a mortgaged property

enforcement of judgment

judicial precedent

Abstract

In this article, the claim initiated by the buyer of a mortgaged property against a seller to oblige him to release a mortgaged property and to draw up a notarial deed in his name is analyzed and revised in the judicial precedent with emphasis on procedural rules. The main question is whether the aforementioned claim is admissible despite the priority of the mortgagor's rights and the binding precedent No. 620 decided by the General Board of the Supreme Court or there is no permission to accept the aforementioned action. Assuming its acceptance, what bases and principles do the procedural rules governing the aforementioned claim in terms of the manner of initiation of a lawsuit, the party to the lawsuit, the manner of enforcement of judgment, and so on follow. Using the descriptive-analytical method and with the aim of establishing correct and consistent judicial precedent, correcting incorrect procedures, and by reviewing various judicial opinions, it is concluded that a claim to oblige a seller to release a mortgage and to draw up a notarial deed in the name of a buyer is not in conflict with the rights of the mortgagee and the content of biding precedent No. 620. This is so since at first the mortgagee's rights are satisfied by the fact that the mortgager repays his debt to him and then mortgage is released. When this is accomplished, the notarial deed is transferred in favor of the buyer. Therefore, there is no need for a mortgagee to be a party to a lawsuit or to issue a judgment to oblige him to release the mortgage. Moreover, enforcement of judgment is subject to the general rules of "compelling a purchaser to fulfill financial obligations".

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APA: Copy

Safaei, Seyyed Hossein, & Javaherkalam, Mohammad Hadi. (2022). A Claim to Oblige the Seller to Release a Mortgage and to Draw up a Notarial Deed Concerning Transfer of a Collateral in the Judicial Precedent; Procedural Rules Concerning the Buyer's Claim against the Seller (Mortgagor). QUARTERLY OF LEGAL ENCYCLOPEDIAS, 5(14 ), 106-130. SID. https://sid.ir/paper/959201/en

Vancouver: Copy

Safaei Seyyed Hossein, Javaherkalam Mohammad Hadi. A Claim to Oblige the Seller to Release a Mortgage and to Draw up a Notarial Deed Concerning Transfer of a Collateral in the Judicial Precedent; Procedural Rules Concerning the Buyer's Claim against the Seller (Mortgagor). QUARTERLY OF LEGAL ENCYCLOPEDIAS[Internet]. 2022;5(14 ):106-130. Available from: https://sid.ir/paper/959201/en

IEEE: Copy

Seyyed Hossein Safaei, and Mohammad Hadi Javaherkalam, “A Claim to Oblige the Seller to Release a Mortgage and to Draw up a Notarial Deed Concerning Transfer of a Collateral in the Judicial Precedent; Procedural Rules Concerning the Buyer's Claim against the Seller (Mortgagor),” QUARTERLY OF LEGAL ENCYCLOPEDIAS, vol. 5, no. 14 , pp. 106–130, 2022, [Online]. Available: https://sid.ir/paper/959201/en

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