Definition
The right of sale is a legally recognized authority to transfer ownership of property or goods to another party in exchange for consideration. The term appears in two distinct legal contexts that researchers must distinguish:
1. CONTRACTUAL RIGHT OF SALE: A right granted by one party to another to sell a specific article or category of goods on the grantor's behalf. This right constitutes the holder an agent for the purpose of completing the sale but does not obligate the grantor to supply the goods or ensure the right can be exercised. It is a limited, commercial authority — not a warranty of availability or a binding supply obligation.
2. POWER OF SALE (SECURED TRANSACTIONS AND PROPERTY LAW): A creditor's or trustee's authority to sell encumbered property upon a debtor's default, without requiring judicial intervention. This form of the right of sale arises from statute, deed of trust, or mortgage instrument and is the meaning most commonly encountered in American real property research. It is closely related to — and often confused with — the power of sale clause in mortgage and trust deed instruments.
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Common Confusion
The phrase "right of sale" is not a term of fixed, uniform meaning. Researchers will encounter it used interchangeably with power of sale, authority to sell, and right to sell across historical and modern sources. These terms are not always synonymous. A power of sale in a deed of trust is a specific procedural mechanism with statutory requirements; a contractual right of sale as described in Bouvier is an agency relationship with different legal consequences. Conflating them can cause a researcher to misread the scope of a party's authority and the obligations that flow from it.
Do not confuse the right of sale with the right of redemption, which runs in the opposite direction — it is the debtor's right to reclaim property sold or about to be sold, not the creditor's authority to sell it.
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Why It Matters in Research
The term's ambiguity across time and jurisdiction is its defining research challenge. In historical sources, "right of sale" often signals an agency or commercial law context — a narrow authority to sell specific goods. In modern American property law sources, the same phrase frequently refers to the non-judicial foreclosure mechanism embedded in deeds of trust. These are structurally different legal relationships, and a researcher who treats them as equivalent will draw wrong conclusions from both bodies of material.
In secured transactions research, locating the "right of sale" requires tracking the evolution of non-judicial foreclosure statutes in the relevant jurisdiction. Many states codified and regulated the power of sale in the twentieth century, meaning that historical materials may describe a broader or less procedurally constrained right than current law allows.
In commercial and agency law research, the Bouvier formulation is useful precisely because it isolates the agency element: the holder of a contractual right of sale is an agent, not a buyer or consignee. This characterization affects questions of fiduciary duty, liability for the sale price, and the consequences of the grantor's failure to deliver.
Researchers using Law Mind materials should note that real property encyclopedia coverage (see Statutory and Equitable Rights of Redemption) addresses the post-sale creditor/debtor dynamic — the period after a sale has been conducted under a power of sale — rather than the threshold question of the seller's authority. The right of sale (authority to sell) and the right of redemption (right to reclaim after sale) are sequential concepts in foreclosure analysis and should be researched together.
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Historical Dictionary Support
Bouvier's treatment is spare but precise on the contractual form: a right of sale makes the taker an agent for purposes of the sale, and critically, it does not bind the grantor to supply the article. The Irish authority cited (6 L.R. Ir. 319) anchors this in common law agency principles rather than property law. Bouvier does not address the power of sale in mortgage instruments under this heading, which reflects the organizational conventions of his era rather than any suggestion that the concepts are unrelated.
Historical legal dictionaries generally underrepresent the power of sale as a distinct heading, treating it instead under mortgage, deed of trust, or foreclosure entries. Researchers should not assume that the absence of robust coverage under "right of sale" in nineteenth-century sources means the concept was undeveloped — it was simply catalogued elsewhere.
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Jurisdictional Note
The right of sale in the non-judicial foreclosure sense is governed by state statute and varies significantly. States divide between mortgage-theory and deed-of-trust jurisdictions, and the procedural requirements for exercising a power of sale — notice, waiting periods, redemption rights — differ accordingly. Any research into whether and how a right of sale may be exercised must be grounded in jurisdiction-specific statutory and case law.
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Encyclopedia Cross-Reference
The Law Mind Real Estate Transactions & Construction Encyclopedia: Statutory and Equitable Rights of Redemption — Pre-Sale and Post-Sale Redemption Periods
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