Ali Jahanian

Naser Nik-Khou Amiri

Mohsen Jahangiri

Muhammad-Husayn Golyari

 

Abstract: The requirement of corporeality (ʿayniyyat) in rahn (pledge/mortgage) is a fundamental prerequisite in Imāmī jurisprudence (fiqh) and, consequently, in Article 774 of the Iranian Civil Code. Accordingly, based on the prevailing opinion (mashhūr) of Imāmī jurists and the Civil Code, intellectual property cannot be pledged due to the lack of the corporeality requirement. This renders intellectual property—which constitutes a major portion of contemporary assets—economically ineffective, whereas today the credit value of intellectual property in commercial relations surpasses that of tangible assets. Adopting an analytical-descriptive method and through an examination of jurisprudential and legal propositions, the present study re-examines the concept of ʿayniyyat. It demonstrates that the predominant jurists’ adherence to the corporeality condition in rahn, and by extension the Civil Code’s position, is not grounded in a compelling rationale. Rather, pledging intellectual property is valid according to Shīʿa jurisprudential sources. The jurists’ and legal scholars’ insistence on the corporeality condition stems from a conflation between existence (being in existence) and determinacy (being specified) of the subject matter of the contract. For, in their era, a specified object that lacked external existence and was to be created in the future was inconceivable; hence, they employed the term ‘object’ (shayʾ) in its material sense. Consequently, the error arises from the homonymy of the term ‘ʿayn’ (object/corporeal entity). Gradually, due to this homonymy, the primary meaning of ‘ʿayn’—which refers to the very existence of the asset, not its external material existence—was replaced by its material connotation. Therefore, it is proposed that, alongside a re-reading of the prevailing jurisprudential view, the Iranian legislator revise Article 774 of the Civil Code in future amendments and remove the requirement of corporeality of the pledged asset from the conditions for the validity of the rahn contract, thereby ensuring adequate protection for intellectual property.