The extent to which the formal element in the real estate mortgage contract is consistent with the rules of "seizure" in Islamic jurisprudence: a comparative study between Islamic jurisprudence and statutory law

Abstract

It is known that the contract of pledge (mortgage), in which the real estate is an object, is not concluded without official procedures in the modern laws. So, if there are no official procedures, the contract is not considered concluded. However, if the object of the contract is movable thing, then there is no need to make the official procedures because the possession of the object is transferred from the pledger to the pledgee. But in Islamic Law, the possession of the object should be transferred from the pledger to the pledgee and there are no official procedures whether the object is movable or immovable thing, i.e. transferring the possession should happen in the movable and the immovable thing and the official procedures are not required. This research comes to discuss the feasibility of substituting and replacing the “transferring of the possession” of the immovable thing, in Islamic jurisprudence, by the official procedures. The research depends on the descriptive and analytical methodology. The research comes out with important results. First, we can replace “transferring the possession” in the official procedures in the immovable things in Islamic Law. Rather, the Holy Qur’an renders the official procedures as a fundamental principle. Second, according to some verses in the Holy Qur’an, transferring the possession of the item in the contract of pledge should happen in the movable things only. The classic Muslim jurists did not deduce this result although it is mentioned indirectly in some verses.