Khiyar: cancellation options in sale

The options in the sale

The khuyar are rights to cancel or confirm a concluded sale. The Quranic base is mutual consent: "do not consume your wealth among yourselves unjustly, except it be a trade by mutual consent" (sura an-Nisa 29).

The option of the session (khiyar al-majlis)

"The two parties remain free as long as they have not separated" (al-Bukhari 2079, Muslim 1532). The Shafi'i and Hanbali schools take the separation of bodies as the limit of the option; the Hanafis and Malikis do not hold it, arguing from the general duty to honor contracts (sura al-Ma'ida 1) and other general texts; for them the hadith answers the case of a double sale in one session.

The option of stipulation (khiyar al-shart)

One or both parties may stipulate the right to cancel within a known period. The scholars agree on its validity in sales without riba: "when you trade, say: no deception; and you have the option for three nights in every good you buy" (al-Bukhari 2117, Muslim 1533; Ibn Majah 2355). an-Nawawi holds the consensus the strongest proof. It is not allowed in the exchange of riba goods (sarf, food for food), separation before mutual taking being forbidden there, nor in salam for the majority of scholars, against the Malikis who allow delaying it by three days.

The option of defect (khiyar al-ayb)

The buyer who discovers a defect he did not know, not accepted after information and not covered by a warranty clause, may return the good or keep it. The jurists define the defect as an alteration from the natural state (Hanafis) or any blameworthy attribute that custom expects to be absent (al-Ghazali), the criterion being the usage of merchants and craftsmen, since the defect lowers the price. For keeping with a reduction (arsh): Hanafis and Shafi'is allow only returning or keeping without reduction, unless the seller agrees; the Malikis allow keeping with a reduction when the defect could be concealed and lowers the price substantially; Ibn Juzayy sorts out the negligible defect, the compensable one when the good perishes, and the one carrying return when gross.

The option of sight (khiyar ar-ru'ya)

The Hanafis and Ahmad (one version) give the buyer of an unseen good an option at first sight, even after saying "I accept", and even if the good matches the description. The Malikis and the Hanbali madhhab bind the sale by description if the delivered good matches it, with no sight option unless stipulated; ash-Shafi'i (his school's position) invalidates the unseen sale, seeing major gharar in it, while Malik accepts the absent good sold by description when the description protects it from change.

The option of testing (khiyar at-tasriya)

For the milk animal bought for milking: Malikis, the Hanbali madhhab and a Shafi'i view grant three days of testing; the Hanafis hold the option immediate only.

Practical note on khiyar

Between the stipulated option, the defect option and the sight option, a buyer is never bound to what was hidden from him: the law of sale protects knowledge over haste.