بررسي حقوقي بازارهاي ثانويه معاملات مبتني بر بيع دين در نظام بانكي ايران

Abstract The present dissertation has been compiled with the objective of analyzing an‎d elucidating one of the most complex an‎d challenging legal an‎d jurisprudential institutions in the realm of the modern economy: the “Sale of Debt” (Bay’ al-Dayn) an‎d its function within the secondary markets of the Iranian banking system. Bay’ al-Dayn, defined in jurisprudential terminology as the transfer of ownership of a general obligation in the dhimma (liability/responsibility) in exchange for a known consideration, has long been a locus of conflicting opinions among Imami jurists. With the development of financial an‎d banking structures an‎d the increasing need for modern financing instruments, the transfer of these debts in the form of securities an‎d their trading in secondary markets (such as the stock exchange) has become an inevitable necessity, requiring robust jurisprudential an‎d legal backing. The central issue of this research involves examining the nature, legitimacy, an‎d legal consequences arising from transactions based on Bay’ al-Dayn in the secondary market, particularly in the hypothesis of sale to a third party. In traditional jurisprudence, while the sale of debt to the debtor strictly faces no serious obstacles—an‎d is deemed valid due to the simultaneous consolidation of the qualities of creditor an‎d debtor, resulting in the extinguishment of the obligation—its sale to a third party has always faced objections. Among these challenges are the requirement of the ability to deliver (qudrat bar taslim), the risk of uncertainty (Gharar), the invalidity of debt-for-debt transactions (Bay’ al-Kali bi al-Kali), an‎d, most significantly, the suspicion of usury (Riba). Nevertheless, the final achievement an‎d conclusion of this dissertation is that as soon as these debts enter the “secondary market” an‎d are converted into securities, the legal rules undergo a fundamental shift. at this stage, transactions exit the scope of the mere private will of the parties an‎d become subject to “economic public order.” Due to the linkage of these securities with macro-market interests an‎d the rights of investors, mechanisms for the voluntary dissolution of the contract (such as rescission [Faskh] an‎d mutual termination [Iqalah]) are severely restricted. Their execution is contingent upon observing strict formalities, obtaining permits, an‎d adhering to the man‎datory regulations (jus cogens) of the stock exchange regulatory authority. Keywords: Sale of Debt, Secondary Market, Iranian Banking System, Imami Jurisprudence, Transfer of Claim, Securities, Economic Public Order, Dissolution of Contract

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