The Seller’s Right of Retention as a Sanction for the Buyer’s Failure to Pay the Price: A Comparative Analysis of Iraqi, Egyptian, and French Laws

Abstract

The buyer’s failure to pay the price at the delivery stage reveals a persistent gap in comparative sales law scholarship. Although Iraqi, Egyptian, and French legal systems all recognize the seller’s right of retention, they differ in defining its legal nature and effects. This study examines the seller’s right of retention as a right entitling the seller to withhold delivery so long as the seller retains possession or control of the sold property, and it demonstrates how this right operates across the three jurisdictions. The study also highlights the lack of consistency in the characterization of retention, its enforceability against third parties, the allocation of the risk of loss during the retention period, and its relationship to insolvency proceedings, all of which generate uncertainty in judicial practice and contractual dealings. Methodologically, the study adopts a doctrinal, text-based approach with a functional comparative orientation. It analyzes statutory provisions and leading juristic commentaries within a unified framework addressing the legal basis of the right of retention, the conditions governing its exercise, its effects, including opposability to third parties and risk allocation, as well as the rules governing its extinction and the liability arising from its exercise. The study reaches four principal findings. First, the three legal systems share a clear common core: the seller’s right of retention is possession-based, arises when the debt is due and the price remains unpaid, and is limited by the principles of connectedness between the reciprocal obligations, continued possession, and the duty of preservation. Second, Egyptian law continues to protect the seller’s right of retention even where the buyer has furnished security, and places the risk of loss or damage to the sold property on the buyer during the retention period unless the seller is at fault. Third, French law adopts a cautious position regarding the enforceability of retention against third parties, links it closely to the notion of connectedness, and situates it within a reform-oriented legislative framework that brings contractual remedies and security devices into closer alignment. Fourth, Iraqi law gives priority to restoring contractual equilibrium between the parties and treats loss of possession as a ground for the extinction of the right of retention, without recognizing retention as giving rise to an automatic priority right. The study concludes by discussing the practical implications for contract drafting, evidentiary mechanisms, and insolvency risk planning, while also indicating possible avenues for legislative convergence guided by international contract harmonization principles and the standards of the Common Frame of Reference for European private law.