Rules Regarding Mortgage (Rahn)
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Rules Regarding Mortgage (Rahn) |
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1084. Mortgage means that a person effects a conveyance of property to another person as security for money debt, or property held under responsibility, with a provise that if that debt is not paid, the creditor may pay himself out of the proceeds of that property.
(1). What is nowadays aommonly called ~Rahn~ in Iran, is not realy Rahn. It is customary to give some money as lean to the owner of the house in order to live in his house. But if this act is without any rent, it will be usury and Halal (allowed), and the person cannot live in it, and if it is with rent and leasing the house is a condition for giving the loan, then it will be Halal (allowed), and if giving the loan is a condition for leasing the house, as an obligatory precaution, it is not permissible.
1085. A person can mortgage that property over which he has a right of disposal or discretion, and it is also in order if he mortgages the property of another person with his permission.
1086. The benefit which accrues from the mortgaged property, belongs to the owner, whether the mortgagor or any other person.
1087. The mortgagee cannot present or sell the mortgaged property to another person without the permission of the owner, whether he is the mortgagor or any other person. However, if he presents or sells it to another person, and the owner consents to it later, there is no harm in it.
1088. If the creditor demands the repayment of debt when it is due, and the debtor does not repay it, the creditor can sell the mortgaged property and collect his dues, provided that he had been authorised to do so. And if he was not authorised to do so, it will be necessary to obtain permission from its owner. And if the owner is not available, he should, as an obligatory precaution obtain permission for the sale of the property from the Mujtahid. In either case, if the sale proceeds exceed the amount due to him, he should give the amount in excess of his debt to its owner.
1089. If the debtor does not possess anything other than his house he occupies, and the essential household effects, the creditor cannot demand the repayment of debt from him. But, if the thing mortgaged by him is his house or its household effects, the creditor can sell them and realise his dues.
1090. If a person wishes to stand responsibility for the repayment of the debts of another person, his act in this behalf will be in order, only when he makes the creditor understand by his words in any language, or by conduct, that he undertakes the responsibility for the repayment of the debt, and the creditor also accepts the deal. It is not necessary that the debtor, too, should be agreeable. This act is established it two ways:
1) That the guarantor transfers the debt from the debtor's obligtaion to his own obligation. Then if he dies before paying the debt, like other debts it will have priority to inheritance. And this is the real –Daman- according to the jurisprudents.
2) That the guarantor under takes to pay the debt but he is not obliged to pay it, and if he does not mention it in his will, the debt cannot be paid from his estate.
1091. When a person gives a guarsntee with a condition, as when he says, if the debtor does not repay your debt, I shall pay it’, it is a matter as valld, according to the first definition made in the previous rule. But it will be of no matter according to the second definition.
1092. A man giving guarantee should know that the person for whom he stands surety is actually a debtor. If someone is still considering to take a loan, one cannot stand as his guarantor till such time when the loan has been taken. However this condition is not necessary for the second definition of Daman.
1093. If a person guarantees the payment of the debt of a person, without obtaining his permission, he (the surety) cannot demand anything from the debtor.
1094. If a person guarantees the payment of debt with the permission of the debtor, he can demand that amount or quantity from the debtor even before having paid anything to the creditor. But if he paid, or delivered a commodity other than the one which was owed, he cannot ask the debtor to pay or deliver to him that commodity. For example, if the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10 tons of rice, he can arrangement, in which case, there is no objection.
1095. If a person becomes a guarantor for the payment of someone's debt, he cannot withdraw from his responsibility as a guarantor.
1096. As a precaution, the guarantor and the creditor cannot stipulate an option for cancellation of the guarantor at any time they wish to do so.
1097. Personal surety or security (kafalah) means that a person takes the responsibility for the appearance of a debtor, as and when the creditor asks for him. A person who accepts such a responsibility is called Kafil (guarantor).
1098. A personal surety will be valid only when the guarantor makes the creditor understand by words (in any language), or conduct, that he undertakes to produce the debtor in person as and when demanded by the creditor, and the creditor also accepts the arrangement. As a precaution, the debtor's consent is also necessary for the validity of such a guarantee; in fact, as a matter of precaution, both the debtor and the creditor must accept the Kafalah.
1099. Anyone of the following five things will terminate the personal surety (bail guarantee):
(i) When the guarantor hands over the debtor to the creditor, or if the debtor himself surrenders to the creditor.
(ii) When the debt of the creditor has been discharged.
(iii) When the creditor himself forgives the debt, or transfers it to semeone alse.
(iv) When the debtor or the guarantor dies.
(v) When the creditor absolves the guarantor from his personal surety.
1100. When a person gives his property to another person, and tells him that,it is deposited in trust, and the latter accepts it, or, without uttering a word, by a simple conduct, the depositor and the receiver both understand and accept the intention, then they must follow the rules of Wadi`ah as will be explained later.
1101. If a person accepts a deposit from a child without the permission of its owner, he should return it to its owner. And if that deposit belongs to the child himself, it is necessary that it is delivered to his guardian; and if it gets lost or destroyed before the delivery, the person who accepted the deposit must compensate for it. But if he had secured it from the child with the intention of delivering it to the guardian, and if he had not been careless in its safekeeping nor he had exercised such discretion over it for which permission had not been granted, he will not be responsible for a loss or a damage. The same rule will apply in the case of an insane depositor.
1102. If a person makes the owner of the property understand that he is not prepared to look after his property, and does not accept it, yet the owner leaves it there and goes away, and then the property perishes, the person who has declined to accept the deposit will not be responsible for it.
1103. If a person renounces the custody of the property deposited with him and abrogates the arrangement, he should deliver the property to its owner or to the agent or guardian of its owner, as quickly as possible, or inform them that he is not prepared to continue as a custodian. But if he does not, without any justifiable excuse, deliver the property to them and also does not inform them, and the property perishes, he should give its substitute.
1104. If a person who accepts a deposit does not have asuitable place for its safe keeping, he should acquire such a place, and should take care of the deposit in a manner that he would not be accused of negligence. And if he acts carelessly in this regard, and the property is lost or damaged, he will have to compensate for it.
1105. If a person who accepts a deposit has not been negligent in looking after it, nor has he gone beyond moderation, and then the property unexpectedly perishes, he will not be responsible for it. But if he has been careless about its security, say, by keeping it at a place which is vulnerable to theft, or if he commits such excesses like using those articles of deposit without the owner's permission (like wearing the dress or riding the vehicle or the animal etc.) and then the deposited property is lost or damaged, he should pay the owner its compensation.
1106. If the owner of the deposit dies, and it devolves upon his heirs, the trustee of the deposit should give the property to all the heirs, or to the person who has been authorised by all of them to receive the property. Hence, if he gives the entire property to one heir without the consent of others, he will be responsible for the shares of the remaining heirs.
1107. If a person with whom a property has been deposited, observes in himself the signs of approaching death, as a precaution he should, if possible, deliver the deposit entrusted to him to its owner, his guardian or his agent, or inform him. And if it is not possible to do so, he should make such arrangement which would satisfy him that the deposit would reach its rightful owner after his death. For example, he should make a will about it, attested by witnesses, and give the name of the depositor to the executor of his will and to the witness, describing fully the nature of the deposit, and the place where it is kept.
1108. If a person with whom a property has been deposited, wishes to go to a journey, he can give the deposit to his family's members to keep it safe. But if keeping the deposit needs his own presence, he should either stay, or deliver it to its owner, his guardian or his agent, or inform him.
1109. Ariyah means that a person gives his property to another person for use in permission ways.
1110. If a person who has borrowed something is not negligent in its keep, nor does he go beyond moderation in its use, he will not be responsible if it is lost or damage by chance. However, if the two parties stipulate that, the borrower would be responsible for loss or damage, or if the thing borrowed is gold or silver and it is lost or damaged, the borrower should compensate for it.
1111. If a person borrows gold silver and stipulates that if it is lost or damaged, he will not be responsible, he is not responsible if it is lost.
