The legality of imprisonment for fulfilling an obligation

Abstract

The basis of the right to detain is the idea of ​​justice and good faith required by legal transactions between individuals, which requires that contracting parties carry out their obligations stipulated under the contract, without resorting to any legal procedure, To force them to do so, but if the debtor refrains from voluntarily implementing the obligation, then the creditor may resort to legal means to enforce that obligation, including withholding the fulfillment of the obligation. It is not logical and fair to A debtor demands that his creditor pay him what he has committed to before he fulfills his debt. The right to imprisonment is one of the legitimate and legal means to ensure the fulfillment of corresponding financial rights, and it is addressed in Iraqi Civil Law No. 40 of the year 1951, the effective rate as one of the guarantees for preserving the rights of creditors, and thus the right of imprisonment is established for every person who is both a creditor and a debtor who refrains from fulfilling his obligation to return the money he has that belongs to his debtor as long as this He is obligated to fulfill what he owes, which means that the right to imprisonment assumes the existence of two obligations, each of which results from and is linked to the other. The right of confiscation applies not only to the thing itself, but also to accessories and fruits of the thing However, the garnishee does not have a lien on the seized item, since the garnishee creditor does not take precedence over other creditors in recovering his right from his debtor.

      The right of withholding is extinguished either in a consequential manner as a result of the expiry of the debt guaranteed by it, or in an original manner, in which case the extinguishment occurs independently of the debt with which it is withheld, so the right of withholding is extinguished and the debt guaranteed by it remains in existence in the event that insurance is provided. Sufficient to fulfill the right guaranteed by the imprisonment, or the holder waives his right to imprisonment, or the holder does not commit to preserving the imprisoned thing, or the destruction of the impounded thing.