Reform of Mortgage Enforcement in Egypt: Bringing Together the Ancient and the Modern

Reform of Mortgage Enforcement in Egypt: Bringing Together the Ancient and the Modern

Nora Harb

It is interesting to find a law designed to be fair to one group of targets rather than another group of targets. The Egyptian Civil Procedures Code in relation to the enforcement of mortgages is found to be fairer to debtors than it is to creditors. Creditors are only permitted to initiate the enforcement procedures and debtors are given enough rights to allow them to postpone the finalisation of the enforcement procedures for tens of years. In this paper, by bringing together ancient and modern principles, I argue for two new enforcement systems - self-help and enforcement through a third party - and show that they can strike a better balance of fairness between debtors and creditors. Self-help in particular has been rejected in Egypt on two grounds: (i) that it will be abused by creditors; and (ii) that it is against Islamic sharia. By reference to the principles adopted by European Bank for Reconstruction and Development with regard to security enforcement, I argue that self-help can strike a better balance of fairness. And by reference to primary sources of Islamic sharia, I argue that self-help is in fact the default way of enforcing security in sharia.

Law and Financial Markets Review, Vol. 3, No. 3, May 2009: 260-273.

Online

Originally Published: 
01/01/2011