آرمان یعقوبی مقدم

Each year, the central bank determines the amount of profit under the monetary and banking policies of the country. But, in practice, it is the bargaining power between the bank and the borrower that determines the profit in the facility contract and since banks are in a superior economic position, they often try to increase the facility profit rate by incorporating various conditions(pre opportunity, supplemental, etc.). In judicial procedure, the courts also had two approaches to dealing with facility contracts: some courts invoked the contract on the basis of the principle of freedom of will, while others invalidated facility profit which are in excess of those approved by the Monetary and Credit Council on the basis of the monetary and banking laws and regulations. This difference in conceptions caused to invalidate of the condition of the profit rate in excess of approvals of the Monetary and Credit Council, following the procedural unity judgment, number ۷۹۴, of the General Assembly of the Supreme Court by virtue of public order and deeming it unfair. The issuance of this judgment has laid a new cornerstone in the field of monetary and banking in order to support the weak side of the contract.
One of the common lawsuits in banking facility contracts is the annulment of the profit condition in excess of the approval of the Monetary and Credit Council. The main concern of the present research is to examine the legal status of the surplus profit condition(including valid, invalid, invalid and void) from the perspective of the doctrine of the banking law, civil law and jurisprudence in order to present the selected point of view.
The importance of the surplus profit condition from a legal and jurisprudential point of view and the benefits and practical effects of it in judicial procedure are needed to be researched.