The Jurisprudential and Legal Evaluation of Buying (Selling Mortgages) and Selling Loans and Banking Facilities

Abstract

Loan transferring (selling mortgages and devolution of right) and banking facilities from the seller to the buyer is a fact called “loan selling” which is known as a new example of “sale” (Arabic: بَیْع, Bayʿ). The ruling of this transaction is a matter of disagreement among contemporary jurists and the legislator does not stipulate in this regard. The present article tries to evaluate these transactions by a jurisprudential and legal criterion, because firstly, the transferability of loan and devolution of right and secondly the ruling of such transactions is doubtful. Therefore, it has been concluded by examining and analyzing the views of jurists and Iranian laws that loan transferring (selling mortgages and devolution of right) as an intellectual right are not transferable to others and according to the views of some late jurists and laws issued by banks, illegitimacy and legal prohibition of these transactions are confirmed, which of course, the effects of this fact in economic and social terms emphasize its legal and religious prohibition.

Keywords

• buying and selling
• loan
• banking facilities
• assignment of a patent
• generalization and expansion of sale (arabic: بَیْع
• bayʿ)