چکیده:
Undoubtedly, the realization of any contract and agreement both creates obligations and duties for its parties and also grants them rights and powers. The right of retention is among the rights that often arise in commutative transactions. At first glance, it might be perceived that this expression is merely a legal term used in various legal schools, whereas it has been raised among jurists since ancient times and has been discussed and examined in detail. In this writing, in addition to extracting and codifying the main issues related to the right of retention that exist scattered in jurisprudential texts from among the written works of jurists, misconceptions such as generalizing the subject to any type of refusal, limiting it to the contract of sale, and even the necessity of its bilateral nature, have been criticized and reviewed. The research conducted in this essay can resolve the ambiguity and vagueness present in the only legal article on the subject of the right of retention and provide the basis for amending the law and potentially adding articles to it in order to resolve existing inadequacies.
خلاصه ماشینی:
In the opposing theory, it is argued that: First, there is no text regarding the aforementioned right; second, the requirement of the transfer of ownership by means of the contract is that each of the parties, upon demand from the other party, is obliged to deliver the property to them without having the right to retain their property; third, the very fact that each party has the right to dispose of their own property without the permission of the opposing party is evidence that the right of retention is not permissible; fourth, the fact that one of the parties refrains from handing over the property to the other and commits injustice against them cannot be a justification for refusal and injustice on the part of the other party; therefore, delivery is absolutely obligatory, even if the opposing party is not willing to deliver the consideration for it.
Despite what has been said, some jurists believe that the generality of reciprocity (taqabud) also includes the conditions within the contract and the secondary obligations related to the price and the sold item, making them subject to the right of retention.
Dispositions of the contracting parties regarding the subject of the right of retention Aside from the ruling on possession, the buyer's dispositions regarding the sold item that he has taken possession of without the seller's permission is also a matter of debate.
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