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Mechanisms for Protecting the Mortgagee from the Effect of Retroactive Loss of Ownership by the Mortgagee – A Comparative Study | ||
| Journal of Anbar University for Law and Political Sciences | ||
| Article 3, Volume 16, Issue: 3, September 2026, Pages 31-52 PDF (768.06 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.37651/aujlps.2026.169218.1738 | ||
| Authors | ||
| Saad Hussein Abed* ; Duha Wajdi Mandil | ||
| College of Law / University of Fallujah | ||
| Abstract | ||
| The core idea of this study lies in the fact that the retroactive extinguishment of the mortgagor’s ownership, as a result of rescission, nullity, or other causes of retroactive invalidity, leads to considering the mortgagor as having never been the owner of the property from the outset. Consequently, the mortgage is extinguished as an accessory right. This gives rise to the research problem, which concerns the extent to which legal protection may be afforded to a mortgagee acting in good faith, so as to ensure the continued validity of the real estate mortgage despite the retroactive loss of the mortgagor’s ownership due to rescission or nullity.The general rules of the Iraqi Civil Code do not provide explicit or direct protection for the mortgagee in such cases, thereby exposing real estate credit to a degree of instability. The study concludes that certain rules governing real estate mortgages may be employed as indirect mechanisms to protect the mortgagee, albeit with limited effectiveness, particularly those relating to the warranty against eviction, on the basis that the mortgaged property has been recovered by the original owner, or the warranty against loss, founded on the concept of constructive loss of the mortgaged property resulting from the retroactive extinction of the mortgagor’s ownership.In light of comparative analysis, | ||
| Keywords | ||
| Mortgage; retroactive forfeiture; mortgagee; discount of intent; credit | ||
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