أحكام القبض في عقد الرهن الحيازى : دراسة قانونية مقارنة

Abstract

The subject of this study concerns the provisions of receiving in the possessory mortgage contract, as a comparative study. It aims at explaining the concept of receiving in the mortgage contract, knowing how receiving is carried out in the foreclosure and the movables, and knowing the jurisprudential provisions that are pertaining to the subject of foreclosure such as :what is permissible and what is not, and to what extent it is legitimate to benefit or make use of it. I have adopted a descriptive comparative analytical approach to the legal texts and a presentation of the opinions of jurists in the jurisprudential issues related to the subject of the study followedby its discussion to reach the findings and recommendations proposed to the Sudanese legislator. This option is chosen because this subject is a complex jurisprudential issue that has many problems which are difficult to tackle such as how to receive or seize the property or movables, the rights,and obligations of equity and other matters of jurisprudence.The study also examined the concept of receiving, how it is done, and reviewed the conditions of receiving, judgment, and who is to do it, the manner in which justice is appointed and removed and its rights and duties in the contract of mortgaging. The study concluded that receiving in the property is between the mortgagor and the mortgagee and distinguishing it from other types, and enabling themortgagee putting his hand on it because receiving isonly imaginable this way. The study also concluded that the Islamic shari'a has priority in establishing the rules of the provisions of receiving in the foreclosure contract before the contemporary laws. The study also concluded that foreclosure enhances trust and achieves lofty goals for both the creditor and the debtor. It also reinforces the economy and contributes to increasing national income. Based on the above, we recommend that all the texts on the mortgage and the provisions of receiving should be put in a special law called the law of foreclosure and that this law should be introduced and taught in all faculties of law, and we recommend that receiving should be made a necessary condition in the mortgage contract and that mortgageshall not be done without it.