حقوق فناوریهای نوین (Mar 2023)
Criticism and legal analysis of the application of "Forbearance" to the contracts of credit institutions with debtor customers
Abstract
The conclusion of a secondary contract with a debtor customer is one of the solutions foreseen in the banking system to reduce the volume of non-performing exposures. However, the incorrect perception of the nature of these contracts and their confusion with the concept of forbearance in some laws and regulations have left adverse legal consequences. In recent years, several decisions have been issued in the judicial courts regarding their invalidity. Examining the substantive differences between the concepts of forbearance and secondary contract shows the incorrect interpretation of forbearance compared to the mentioned contracts and the need to amend related instructions. The solution of secondary contracts has been created to create benefits for credit institutions and for the customer to be able to pay his debt with a reasonable and logical increase in a more extended period, A subject that is entirely different from the philosophy of Islamic forbearance. Forbearance is an opportunity that is given to the debtor without any change in the legal relationship, and it does not bring any benefit to the creditor, and he may also suffer losses; Meanwhile, the renewal and conversion of contracts as two clear examples of the defined bank's forbearance the legal relationship of the parties are fundamentally changed. In addition, a designated bank's forbearance is not detrimental to the credit institution. Still, in all its assumptions, it increases the debtor's debt over an extended period. Eliminating the suspicion of the intention and realisation of abduction from secondary contracts, the absence of the need to prove the debt, and the failure to realise double damages and compound interest in these contracts are among the legal fruits of the separation of these two natures.
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