Mortgagor's responsibility for the damage of late payment of bank facilities; According to the theory dated 23/11/1399 of the jurists of the Guardian Council

Subject Areas : All jurisprudential issues

Yasser Arabnezhad ¹ , Katayoon Kiasoroosh ²

1 - Basic lawyer of a court, doctoral student of private law, Department of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.
2 - Basic lawyer of a court, master's student of financial and economic law, Department of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Received: 2022-11-12 Accepted : 2022-12-20 Published : 2024-01-19

Keywords: non-fixed debt, bank damage, mortgage, Late fine, Compensation, fixed debt,

Abstract :

Banks demand the compensation for late payment related to the facilities in the same way from the three groups of facility receivers, guarantors and mortgagees. The prevailing practice in the judicial authorities and registration departments is that there is no difference between the responsibility of the mortgagor and the recipient of the facility, and the damage of late payment from the mortgagor is also subject to judgment or execution. The origin of this procedure goes back to the interpretation of Article 775 of the Civil Code and Note 1 of the Law on Banking Operations without Usury (Interest) approved in 1362. According to the legal and jurisprudential reasons stated in this research, which was obtained based on the library research method, the starting point for calculating damages for late payment in cooperative contracts is from the time of violation or excess of the recipient's facilities, and in exchange contracts, this starting point is the due date of the debt. . The reason for the damage of late payment at the time of the conclusion of the contract is due to a condition included in the contract, but because the fulfillment of this condition, both in partnership contracts and in exchange contracts, is possible and deferred to the future; Therefore, according to Article 775 of the Civil Code and the recent theory of the supreme jurists of the Guardian Council, if the mortgage contract was concluded before the confirmation and establishment of the debt due to the damage of late payment, it is void and the mortgagor has no responsibility for it.