The absence of a provision that the amount of the mortgaged money must be proportionate to the secured debt in the insurance mortgage (A study of weighting between legal necessities and respect for | ||
| Journal of Anbar University for Law and Political Sciences | ||
| Volume 13, Issue: 2 part 2, December 2023, Pages 1100-1130 PDF (1.14 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.37651/aujlps.2023.144028.1099 | ||
| Author | ||
| Raad Aday Hussein* | ||
| كلية الحقوق-جامعة النهرين | ||
| Abstract | ||
| Contemporary legislation is under the weight of modern ideas emanating from the French Revolution, which include respect for the authority of the will and giving this will a broader space to move through, which has produced many distinct legal provisions that are in the interest of the contracting parties. The contract, its implementation and its termination, but the legislator sometimes prefers to restrict it or reduce its scope for purposes related to the public interest. And between submission to the contractual will on the one hand or being restricted to it on the other hand, the legislative philosophy emerges to outweigh one over the other for purposes that (the legislator) sees as the first to follow, but due to the specificity of some contracts and their connection to a financial aspect affecting the lives of individuals, the legislator considers giving a greater role to this will and remaining silent about regulating some cases emerged from it, as is the case in the mortgage contract in general, and in particular the insurance mortgage contract, in which the legislator overlooks the obligation to proportionate the amount of the mortgaged money with the secured debt noting that this proportionality would achieve a strong guarantee for the mortgagee creditor who is in dire need of it to rectify any breach that may occur on the part of the mortgagor debtor or what may arise from sudden economic circumstances. | ||
| Keywords | ||
| الرهن; ،التناسب; ،الدائن المرتهن; ،دائن عادي; ؛; ،ميزة التقدم | ||
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