Transactions with the right of informal restitution with a jurisprudential attitude

Subject Areas : Private law

Ali Talebi ¹ , Najatullah Abrahamian ^{2 *} , mansor amini ³

1 - PhD in Private Law, Faculty of Law, Theology and Political Science, Science and Research Unit, Islamic Azad University, Tehran, Iran.
2 - Assistant Professor, Department of Private Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.
3 - Associate Professor, Department of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Received: 2022-01-23 Accepted : 2023-04-29 Published : 2023-11-22

Keywords: Dealing with the right of return with an official and unofficial document, description of the contract, third party in good faith, conditional sale,

Abstract :

Since in the judicial procedure of Iran, the current government considers ordinary documents as valid, many people conclude a transaction with the right of extradition through an ordinary document in order to escape from the restrictions stipulated in Article 34 of the Registration Law. Some judges, referring to the provisions of the Civil Law regarding conditional sale, consider the transaction with the right of restitution to be valid, and some others subject this transaction to the provisions of Article 34 of the Registration Law. In terms of balance of exchange, this article identifies two different types of transaction with normal restitution rights: transactions that are subject to a valid exchange contract in terms of the principles of exchange contracts and contracts that do not have the characteristics of an exchange contract. Judges should recognize the transaction with the right of restitution in the event that it falls under the characteristics of the sale of a real condition, and refrain from recognizing the transaction with the right of virtual and unreal restitution, and include these transactions in the mortgage contract to protect the creditor or the buyer