Islamic Fiqh > Financial transactions > Khiyar: cancellation options in sale > Khiyar: the options, part 1
Contents
Updated on 26 September 2026 at 7:12 PM
The options in contracts (khiyar) form one of the major chapters of the fiqh of transactions: they allow one of the parties, or both, to confirm or annul a sale within a given period. This first part deals with the option of the session (khiyar al-majlis): its ruling, the manner of separating, the death of one of the contracting parties, the contracts in which it is established, and the dispositions permitted during the session. It then covers the option of condition (khiyar al-shart): its definition, its duration, the contracts in which it is valid, the option stipulated for a third party, the ownership of the goods during the option, their destruction, and confirmation and rescission. It also presents the foundations of the option for cause of ghabn (being undercharged in the market) and the legitimacy of the option of defect (khiyar al-'ayb), with the detailed positions of the four schools and their evidences from the Quran, the Sunna and consensus.
In the hadith of Hakim ibn Hizam, the Prophet (peace and blessings of Allah be upon him) said that the sale might be "at option" (Reported by al-Bukhari, 2003). He also said:
"The two parties to a sale each have an option against his companion as long as they have not separated, except the sale of option."Reported by Muslim (1531)
He thus made separation the ultimate limit of the choice, and what comes after a limit must be the opposite of what precedes it, unless he finds a defect in the goods and returns them for that defect, or unless he had stipulated for himself an option for a known period, in which case he also holds the right to return them. Ibn Qudama said: there is no disagreement among the people of knowledge concerning the establishment of the right of return in these two cases (al-Mughni, 4/14).
Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: they agreed that when the sale has taken place and the two have separated from the place of transaction with their own bodies, by a separation such that each of them disappeared from his companion's sight by leaving that place, and the seller has handed over to the buyer what he sold him intact, without any defect, whether he practiced deception or not, and the buyer has handed over to the seller the price intact, without defect, the sale is then complete (al-Iqna' fi masa'il al-ijma', 4/1722, no. 3360).
The scholars differed over the ruling on khiyar al-majlis: does it last until the end of the session and the actual bodily separation of the two contracting parties, or does it end with the conclusion of the contract, upon the completion of the offer and acceptance? They held two opinions on this.
The Hanafis and Malikis held that the sale is concluded by the contract: as long as the seller and the buyer have not completed the contract through offer and acceptance, either of them may retract from the sale. Once the contract is concluded, neither of them has an option, even if they are still in the session: if the offer and acceptance have taken place in a valid sale, the sale becomes binding, taking possession is not necessary, and ownership is established for each of the two, with no right of rescission for either contracting party after acceptance in the session, for rescinding would annul the right of the other, which is therefore not permitted. The separation meant in the words of the Prophet (peace and blessings of Allah be upon him) is the separation of words, not of bodies, as follows:
"The two parties to a sale have an option as long as they have not separated."Reported by al-Bukhari (2079) and Muslim (1532)
"Whoever buys foodstuffs must not resell them before taking full possession of them."Reported by al-Bukhari (2126) and Muslim (1526)
The indication is that he expressed the prohibition of resale by taking full possession: as soon as he has taken full possession, resale becomes permitted, whether he took possession within the session or after it. Moreover, a sale is not permitted except after the establishment of ownership, and sale is a contract of exchange that becomes binding through offer and acceptance, like marriage.
In some chains of transmission, the Prophet (peace and blessings of Allah be upon him) said, in a version reported by Abu Dawud and al-Daruqutni:
"The two parties to a sale have an option as long as they have not separated, except if it is a sale of option, and it is not lawful for him to leave his companion for fear that he will detach himself by a consensual release."Reported by Abu Dawud (3456), al-Tirmidhi (1247), al-Nasa'i (4483) and Ahmad (6721), graded hasan
If khiyar al-majlis were legislated, there would be no need for mutual release (iqala), for whoever's soul inclines toward rescission has the option. The fact that he expressly mentioned what makes recourse to the other necessary, namely iqala, proves the invalidity of khiyar al-majlis after the contract: it is established only before the contract, and the two traders are precisely the two engaged in the act of selling.
Moreover, if khiyar al-majlis were valid, it would be impossible for a single person to hold both sides of the contract, as when a father buys from his young son, from a guardian, or from a ruler, which is a matter of consensus: the practice of the evidence would then have to be abandoned. And it is a contract concluded with consent: khiyar al-majlis would therefore be invalid in it, as it is after the final ratification. Now this was the practice of the people of Medina, which takes precedence over the solitary report (khabar al-wahid). The option of each of the two is established only if it is due to a defect, to lack of inspection at the time of the sale, or to a stipulated option.
Abu Omar Ibn Abd al-Barr (may Allah have mercy on him) said: the later Malikis and Hanafis argued at great length for their madhhab in rejecting this hadith, in a manner too lengthy to recount, most of which is verbosity yielding nothing binding or defensible. Among other things, they argued from the apparent and general texts, which is not part of their original method. They cited the generality of the words of Allah: "Fulfill the covenants": the two had contracted, and this hadith nullifies fulfillment of the contract; then the generality of the words of the Messenger of Allah (peace and blessings of Allah be upon him): "Whoever buys foodstuffs must not resell them before taking full possession of them" (Reported by al-Bukhari, 2126, and Muslim, 1526): he left the sale unrestricted, whether taking possession occurs before or after separation; and many hadiths of this kind, in which the sale is left unrestricted without mention of separation. Now these are apparent and general texts which cannot be countered by their like against specific and explicit texts.
They also cited the hadith of the lost-and-found (luqata), reported by Amr ibn Shu'ayb from his father, from his grandfather: the Prophet (peace and blessings of Allah be upon him) said:
"The two parties to a sale have an option as long as they have not separated, and it is not lawful for him to leave his companion for fear that he will detach himself."Reported by Abu Dawud (3456), al-Tirmidhi (1247), al-Nasa'i (4483) and Ahmad (6721), graded hasan
They said: this proves that the sale was indeed concluded between them before separation, for iqala is only valid for sales already concluded. They also said: separation may occur through speech, as in the marriage contract and its like, or the occurrence of divorce, which Allah named a "separation": "But if they separate, Allah will enrich each of them from His abundance" (Surah 4, 130); "And do not be like those who divided and differed" (Surah 3, 105); and "My community will divide": without their bodies separating. And just as the gathering of bodies has no effect on the sale, separation has no effect on it either.
They also said: by "the two parties to a sale having the option" he meant the two bargaining over the price: they are only called "parties to a sale" while still in the act of bargaining; once the sale becomes binding, they are no longer called thus, but one says they "were" traders, as one says of one who fasted, ate, drank or prayed that he "was" in that state, without naming him so except metaphorically or by extension, which has no weight in rulings. This therefore proves that "the two parties to a sale having the option as long as they have not separated" means the two bargaining. From Abu Yusuf the judge, in explicit text: they are the two bargaining; if one says "I sell to you for ten," the buyer has the option of acceptance in the session before separation, and the seller has the option of retracting his words before the buyer's acceptance. A similar statement was reported from Isa ibn Aban.
Muhammad ibn al-Hasan said: the meaning of his words in the hadith "The two parties to a sale have an option as long as they have not separated" is that, when the seller says "I have sold you," it is permissible for him to retract as long as the buyer has not said "I accept": this is the view of Abu Hanifa. It was reported of Abu Hanifa that he examined this report in the light of his principles, as he did with other solitary reports: he weighed them against the principles enjoying consensus and strove to accept or reject them. It was reported of him that he said, in rejecting this hadith: "What do you think if they are on a ship? What if they are in prison, or in chains? How would they separate?" The sale would then never be valid among such people. This is precisely what Abu Hanifa was criticized for, his greatest flaw and gravest offense in the eyes of the people of hadith who transmit his shortcomings: his objection to authentic traditions on the basis of mere opinion. Malik said: there is no option for the two traders once the sale is concluded by words, even if they do not separate; and Ibn Khuzaymanda reported from Malik, in the same sense as what we have cited from Muhammad ibn al-Hasan and Abu Hanifa, a text to that effect (at-Tamhid, 14/11, 14; al-Istidhkar, 6/476, 479; al-Muwatta, 3/194; al-Mudawwana al-kubra, 10/188; al-Furuq, 3/445, 452; and other references).
The Shafi'is, Hanbalis and Zahiris held that once the sale is contracted, each trader holds the option between rescission and confirmation, even without stipulating it, until they separate bodily without coercion, or until they mutually choose to make the contract binding with a phrase such as "we have mutually chosen," "we have chosen," or likewise "we have confirmed the contract," "we have made it binding," "we have voided the option," "we have annulled it": for it is their right, and it falls by their waiving of it, like the stipulated option. If one of the two chooses its binding character, his right of option falls and the right remains with the other, like the stipulated option: this is the madhhab of the Hanbalis and the sound view among the Shafi'is. This rests on the hadith of Ibn Umar (may Allah be pleased with him):
The Messenger of Allah (peace and blessings of Allah be upon him) said: "When two men conclude a sale, each of them has an option as long as they have not separated and are together, or one of them grants the other the option; if one grants the other the option and they conclude the sale on that basis, it becomes binding; and if they separate after agreeing on the sale, without either of them canceling it, it becomes binding."Reported by al-Bukhari (2006) and Muslim (1531)
From Ibn Umar (may Allah be pleased with him), the Messenger of Allah (peace and blessings of Allah be upon him) said: "The two parties to a sale have an option as long as they have not separated, or one of them says to his companion: choose" (Reported by al-Bukhari, 2003). In the wording of Muslim: "The two parties to a sale each have an option against his companion as long as they have not separated, except the sale of option" (Reported by Muslim, 1531). And: "Any pair of traders: there is no sale between them until they separate, or it is at option" (Reported by al-Bukhari, 2113). From Ibn Jurayj: Nafi' dictated to me on my tablets: I heard Abdallah ibn Umar (may Allah be pleased with him) say that the Messenger of Allah (peace and blessings of Allah be upon him) said: "When the two traders conclude the sale, each of them has an option on his sale as long as they have not separated, or their sale is at option." Nafi' said: when Ibn Umar (may Allah be pleased with him) concluded a sale and wanted it to become binding, he would walk a little, then return (Reported by Muslim, 1531).
From Abu al-Wadi': we went out on a campaign and encamped at a place; a man among us sold a horse for a young slave, and they remained the rest of their day and their night; the next day the time of departure came: he rose to saddle his horse, then regretted it; he went to the man and seized him by the sale, but the man refused to give him back the horse. He said: between you and me stands Abu Barza (may Allah be pleased with him), companion of the Prophet (peace and blessings of Allah be upon him). They went to him at the edge of the camp and told him the story. He said: do you accept that I judge between you by the judgment of the Messenger of Allah (peace and blessings of Allah be upon him)?
He said: "The two parties to a sale have an option as long as they have not separated. I see that you have not separated."Reported by Abu Dawud (3457), graded sahih
In the chain of al-Bukhari, Salim ibn Abdallah ibn Umar reports from his father (may Allah be pleased with him): I bought from the Commander of the Believers Uthman property in the valley against property of his in Khaybar. When we had concluded the bargain, I walked backward on my heels until I left his house, for fear that he would seek to cancel the sale. The sunna was that the two traders have an option until they separate (Reported by al-Bukhari, 2116). And from Salim ibn Abdallah ibn Umar: Abdallah ibn Umar (may Allah be pleased with him) said: whenever we concluded a sale, each of us had an option as long as the two traders had not separated. I thus sold to Uthman ibn Affan: I sold him property of mine in the valley against property of his in Khaybar; after the bargain I kept walking backward on my heels, for fear that Uthman would cancel the sale before I left him (sahih: reported by al-Daruqutni, 2847, and al-Tahawi in Sharh ma'ani al-athar, 4/364).
These hadiths are explicit that each of the two contracting parties has the right of rescission as long as he remains in the session, and because it is a contract aimed at transferring property, which does not become binding by the mere contract, like the gift. As for his words "except the sale of option," al-Nawawi said, in Sharh Muslim (10/174), that they carry three interpretations. The soundest: the mutual granting of choice after the conclusion of the contract, before leaving the session; that is, the option remains theirs as long as they have not separated, unless they mutually gave each other the choice in the session and chose confirmation of the sale, in which case the sale becomes binding by the very act of that mutual choice, and the option does not last until separation. The second view: it is a sale in which an option of three days or less was stipulated, which does not lapse upon separation but lasts until the stipulated period expires. The third: a sale in which the absence of option within the session was stipulated, so that the sale becomes binding upon its conclusion. This is the interpretation of whoever validates the sale with this condition, whereas the soundest view among the Shafi'is is its invalidity with this condition. Many scholars also weakened the tradition attributed to Umar (may Allah be pleased with him): "The sale is only by choice or at option," and the notion that a condition cutting off the option may not be stipulated in a sale; Abu Isha at-Tirmidhi validated this meaning, and Ibn al-Mundhir reported in al-Ishraf this interpretation from al-Thawri, al-Awza'i, Ibn Uyayna, Abdallah ibn al-Hasan al-Anbari, al-Shafi'i and Ishaq ibn Rahawayh.
The Shafi'is and Hanbalis, who uphold khiyar al-majlis, said: each of the two traders has the option as long as they have not separated with their bodies, even if they remained in place for a month or more; and the criterion of separation refers to the custom of the people and to what they consider a separation. Indeed, the Lawgiver suspended a ruling upon separation without defining it, which proves that He meant what people know, as with taking possession and safeguarding: if they are in a wide open space, such as a great mosque or the desert, separation is achieved by walking away a few steps with one's back turned to one's companion.
It has also been said: separation consists of moving far enough away that one can no longer hear the speech the other utters in his usual manner. Abu al-Harith said: Ahmad was asked about bodily separation, and he replied: when this one keeps such a distance and that one such a distance, they have separated. And Muslim reported from Nafi' (may Allah be pleased with him): when Ibn Umar (may Allah be pleased with him) concluded a sale and wanted it not to be subject to release, he would walk a little, then return.
If they are in a large dwelling comprising rooms and chambers, separation consists of moving from one room to another, or to another sitting place, or another spot, or from a sitting place to a room, and the like; if they are in a small dwelling, as soon as one of them climbs to the roof or goes out, he has separated from the other. If they are in a small ship, separation occurs as soon as one goes out of it and walks; if it is a large ship, one climbs to its top while the other goes down below. All of this is the madhhab of the Shafi'is and Hanbalis (al-Najm al-wahhaj, 4/109, 115; al-Mughni, 4/5, 10; al-Kafi, 2/43, 45; Kashshaf al-qina', 3/229, 233; Sharh az-Zarkashi, 2/8, 10; al-Mubdi', 4/63, 66; Matalib uli an-nuha, 3/85, 86; Fath al-Bari, 4/328; Nayl al-awtar, 5/290, 293).
Ibn Qudama (may Allah have mercy on him) said: once separation has occurred, the contract becomes binding, whether they intended it or not, whether they knew it or not; for the Prophet (peace and blessings of Allah be upon him) suspended the option upon separation, and it occurred. If one of the two flees from his companion, the contract becomes binding, for he separated from him by his own choice: the binding of the contract does not depend on their consent; this is why Ibn Umar (may Allah be pleased with him) used to separate from his companion so that the sale would become binding.
If they remained in the session and a curtain was hung between them, or a partition, or they fell asleep, or they stood up and left together without separating, the option remains as it is, however long the period may have grown, for lack of separation. Abu Dawud and Athram reported, through their chain, from Abu al-Wadi' the story of the sale of the horse for the young slave during the campaign, up to the judgment of Abu Barza (may Allah be pleased with him):
"The two parties to a sale have an option as long as they have not separated. I see that you have not separated."Reported by Abu Dawud (3457), graded sahih
If one of the two forced the other to separate, the invalidation of the option is probable: its purpose, namely separation, has been realized, just as the consent of one is taken into account when his companion leaves him, so it is when he himself leaves his companion. The judge said: the option is not interrupted, for it is a ruling suspended upon separation, which did not take place under coercion, just as if divorce had been suspended upon it. The companions of al-Shafi'i have two views on this. According to the view of those who hold that the option is not interrupted when one is forced to leave his companion, it is the option of the latter that is interrupted, as if he had fled from him and left him against his will. The one subjected to coercion holds the option within the session, until the coercion ceases and he separates; if both are coerced, both options are interrupted, for each one's option is interrupted by the other's separation from him, as in the case where only his companion had been coerced. Ibn Aqil mentioned among the forms of coercion the case where they see a fierce beast or an oppressor whom they fear and flee from in panic, or a flood carries them away, or a wind separates them (al-Mughni, 4/6; Nihayat al-matlab, 5/20, 22; Rawdat at-talibin, 3/97, 98; al-Majmu', 9/171; al-Bayan, 5/18, 19; Mughni al-muhtaj, 2/489; Nihayat al-muhtaj, 4/9, 11; ad-Dibaj, 2/60; al-Najm al-wahhaj, 4/113; Sharh az-Zarkashi, 2/7; al-Mubdi', 4/65; Kashshaf al-qina', 3/230).
As for the case where the buyer has himself become the seller: the Shafi'is and Hanbalis differed as to whether the option is established for him or not. The Hanbalis, in the madhhab, and the Shafi'is, according to one view, held that the sale is valid and the option falls. The Shafi'is, according to the third view, and the Hanbalis, according to a narration, held that the sale is valid and the option remains established, due to the generality of the report (Rawdat at-talibin, 3/96; al-Majmu', 9/168, 169; al-Bayan, 5/22, 23; al-Ashbah wa-n-nazair, 285; Asna al-matalib, 2/48; Mughni al-muhtaj, 2/487; al-Kafi, 2/44; Sharh az-Zarkashi, 2/6; al-Mubdi', 4/66; Kashshaf al-qina', 3/231).
The scholars differed in the case where one of the two contracting parties dies in the session: does the option pass to his heir, or does the option lapse? Two opinions. The Hanbalis, in the madhhab, and the Shafi'is, according to one view, held that if he sold and then died in the session, the sale becomes binding and the option falls; for death is the greater of the two separations, more complete a separation than bodily parting, and the deceased, as regards dispositions, has the status of the non-existent.
The Shafi'is, in the most apparent view (az-zahir), and the Hanbalis, according to one view, held that the option is not interrupted by his death and that the option is established for the heir, like the stipulated option and the right of return for defect; for it is an established right that the hadith makes lapse through separation, and this is in no way a separation: the option is therefore maintained for the heir; moreover, the heir takes the place of the one who bequeaths, as if he were he: once he succeeds him, he stands in the place of the deceased. If both die in the session, the transfer of the option to their two heirs raises the same dispute as the death of one of them.
Al-Nawawi (may Allah have mercy on him) said: our companions said that if the option is not established for the heir, the option of the deceased is interrupted; as for the other contracting party still alive, al-Baghawi (may Allah have mercy on him) mentioned that his option is not interrupted until he leaves that session, and the Imam of the Two Sanctuaries (al-Juwayni, may Allah have mercy on him) said that the contract becomes binding from both sides. Al-Rafi'i (may Allah have mercy on him) said that stating this divergence is permitted, for this option is not divided in its falling any more than in its establishment. The judge Husayn (may Allah have mercy on him) mentioned several views on this: one holds that the option of the survivor extends until he leaves his session and is then interrupted; the second, that it lasts until he is together with the heir of the other; the third, that it extends until he leaves the session of the contract, and this is the correct view, the one al-Baghawi affirmed categorically. Al-Ruyani reported a fourth view: his option is interrupted by the death of his counterpart, so that when the news reaches his heir, an option arises for this living man alongside him: this is an anomalous and weak view.
If we say the option is established for the heir: if he is present in the session, the option extends between him and the other contracting party until they separate or mutually choose; if he is absent, the option belongs to him once the news reaches him. Is it immediate, or does it extend in the manner of the session upon which the news reaches him? There are two views, as with the two views concerning the stipulated option inherited by an heir when the news reaches him after the option period has elapsed: according to one view it is immediate, and according to the other it extends as it would have extended for the deceased had he remained alive (Nihayat al-matlab, 5/23, 24; Rawdat at-talibin, 3/98, 99; al-Majmu', 9/165, 166; Mughni al-muhtaj, 2/491; al-Kafi, 2/44; Sharh az-Zarkashi, 2/6; Manar as-sabil, 2/26; al-Mubdi', 4/65; Kashshaf al-qina', 3/231; al-Insaf, 4/370).
The Shafi'is detailed the contracts in which the option is established and those in which it is not:
The Hanbalis said that khiyar al-majlis is established even without the contracting party stipulating it in the following cases:
The establishment of khiyar al-majlis in the sale and what has its meaning means that the contract is revocable, whether or not a stipulated option exists in it: each of the two contracting parties may then confirm the sale or rescind it. Khiyar al-majlis is not established in the following cases:
This ruling exists only among the Shafi'is and Hanbalis, for they hold that separation is by bodies, contrary to the Hanafis and Malikis who say it is achieved by words. Al-Shafi'i (may Allah have mercy on him) said: when the two traders conclude the sale of the goods and exchange possession, or do not exchange possession, each of the two has an option as long as they have not separated, or one grants the other an option after the sale; if he grants him the choice, the sale becomes binding as it becomes upon separation.
If they exchanged possession and the goods perish in the buyer's hand before separation or the option, he guarantees their value, whatever it is, higher or lower than the price; for the sale was not completed over them. If they perish in the seller's hand before the buyer takes possession, before separation or after it, the sale is dissolved between them, and they do not fall within the buyer's guarantee until he takes them; if he takes them and then returns them to the seller as a deposit, he is like anyone to whom they are entrusted. If they separate and the goods then die, they fall within the buyer's guarantee and their price is due from him. If he takes them and returns them to the seller as a deposit and they die before separation or the option, they are guaranteed at the buyer's charge for their value. And everything in which the buyer's ownership has not been completed: the seller is more entitled to it if he wishes, for the origin of ownership was his (al-Umm, 3/5). Abu Ja'far al-Tabari reported these words of al-Shafi'i (may Allah have mercy on him) in Ikhtilaf al-fuqaha (59, 60).
If he bought an animal that gave birth before separation, both remain on the option: if he chooses confirmation of the sale, or they separate, the offspring of the purchased animal belongs to the buyer, for the contract of sale was concluded upon the pregnancy. According to those who say separation is by speech, everything the buyer does is permissible, and everything the seller does is invalid, for his ownership has ceased. Al-Shafi'i's reasoning for holding that what the seller does is permissible while what the buyer does before their separation is not, is that the seller remains owner of the goods, ownership not having been transferred to him.
The Hanbalis said: the buyer's disposition over the goods with a third party, by selling them to him for instance during the two options (that of the session or that of the condition), takes no effect without the seller's permission, unless the option belongs to the buyer alone. If the seller disposes of the goods, his disposition takes no effect, for ownership has passed to the buyer, whether the option belongs to the buyer alone or to both; except if the seller disposes of the goods with the buyer's permission: it is then valid, and the buyer's authorization constitutes a delegation (wakala) granted to the seller, agency being concluded by whatever expresses its meaning.
The seller's disposition over the goods with the buyer's authorization drops his own option and the buyer's option, like the buyer's disposition with the seller's authorization; and their agent is like them in all of this, for the agent's act is like that of his principal. When their disposition takes no effect, because one of the two disposed without the other's authorization, the buyer's disposition by a sale or the like nullifies his own option, even if his disposition takes no effect, for it is proof of his consent. Once his option is nullified by his disposition, the seller's option remains as it is, for lack of anything to nullify it, unless the buyer disposed with the seller's authorization or in his company, in which case the seller's option also falls. The seller's disposition over the goods is not a rescission of the sale, whereas his disposition over the price constitutes confirmation of the sale and annulment of the option. If the buyer uses the goods, even without asking permission, his option is not nullified, for service does not require ownership and therefore does not nullify the option, like mere inspection.
If the goods, of a measured kind sold by volume, perish before taking possession (and likewise those sold by weight, count or land measure), the sale becomes void according to the sounder of the two transmissions, and with it khiyar al-majlis and the stipulated option are nullified, whether they belong to both or to one of them: for what has perished cannot be rescinded. If the loss occurs after taking possession, it falls within the buyer's guarantee and the option is nullified; whether it occurs before or after, for what is neither measured nor the like, their two options are likewise nullified, for what has perished cannot be rescinded (Sharh az-Zarkashi, 2/8; al-Mubdi', 4/74; Kashshaf al-qina', 3/241, 242; Matalib uli an-nuha, 3/99; al-Insaf, 4/389).
Khiyar al-shart is an option established by the stipulation, for its cause is the condition laid down by the contracting party: without the condition, the option would not be established, unlike the option of defect and the option of inspection, which are established without condition. It consists of one of the contracting parties, or each of them, stipulating for himself the right of option, that is, the right to rescind the contract, throughout a known period. It is also called khiyar at-tarawwun, that is, the right of examination and deliberation over concluding the sale or not.
The jurists agreed on the validity of khiyar al-shart in sales free of riba, and it is established by explicit text, not by analogy; analogy would indicate that it should not be valid, because of the uncertainty it involves and the apparent prohibition of "a sale and a condition"; but a specific text came permitting it. This is what Abdallah ibn Umar (may Allah be pleased with him) reported: a man (he is Habban ibn Munqidh) mentioned to the Prophet (peace and blessings of Allah be upon him) that he was being cheated in sales, and he said:
"When you buy, say: no deception."Reported by al-Bukhari (2117) and Muslim (1533)
In another version: "When you buy, say: no deception, then you have the option for three nights over every goods you buy: if you are pleased, keep it; if you dislike it, return it."Reported by Ibn Majah (2355), graded hasan
The meaning of "no deception" is: no trickery, that is, you have no right to trick me, or your trickery does not bind me. Al-Muhallab said: praising the goods and elaborate description do not fall within prohibited deception, for one is indulgent about it, and the sale is not annulled by it (Fath al-Bari, 12/336).
Al-Nawawi (may Allah have mercy on him) said: know that the strongest argument for the establishment of khiyar al-shart is consensus, whose transmission has been reported, and it suffices. He also said: the stipulation of option in the sale is valid by consensus, provided its period is known (al-Majmu', 9/180).
As for sales involving riba, namely exchange (sarf) and the sale of food against food, the stipulation of option is not permitted in them; for it is not permitted for them to separate before the completion of the sale, and this is why they may only separate after taking possession of the two counter-values: were we to permit the stipulation of option, they would separate while the sale was not completed between them. Likewise, separation is not permitted in the salam according to the majority of scholars, contrary to the Malikis who permitted delaying it by three days. Ibn Abd al-Barr (may Allah have mercy on him) said: the option is not permitted, according to the majority of scholars and their body, in what must be delivered immediately within the session, such as sarf and salam, for that would contradict the principles enjoying consensus (al-Istidhkar, 6/485; Bada'i' as-sana'i', 5/174, 175; al-Jawhara an-nayyira, 3/32, 33; al-Lubab, 1/361; al-Ikhtiyar, 2/15; al-'Inaya, 8/444, 445; and other references).
The jurists agreed on the validity of khiyar al-shart when it is three days or less; they then differed: is exceeding three days permitted or not? Abu Hanifa, Zufar and the Shafi'is held that the maximum duration of khiyar al-shart is three days, or less, and that going beyond this is not permitted. This rests on what Abdallah ibn Umar (may Allah be pleased with him) reported: a man mentioned to the Prophet (peace and blessings of Allah be upon him) that he was being cheated in sales, and he said:
"When you buy, say: no deception."Reported by al-Bukhari (2117) and Muslim (1533)
In a version: "When you buy, say: no deception, then you have the option for three nights over every goods you buy: if you are pleased, keep it; if you dislike it, return it."Reported by Ibn Majah (2355), graded hasan
Since the hadith established its validity for three days, it is not permitted to add beyond that, just as it is not permitted to add to the five wasq of the 'ariyya. The option is established by this hadith, contrary to analogy and the general text: the analogy, because it is a condition altering what the contract requires, and such a condition corrupts the contract in principle; the general text, the hadith prohibiting the sale of uncertainty, for this is one, since the conclusion of the contract is suspended upon the uncertainty of the option lapsing; but a specific text came permitting it, and the particular cause is followed; and since it came with three days, this becomes an exception to the general text, analogy being set aside: the generality of the text and the requirement of analogy are thus applied beyond this case, without exceeding the mentioned duration. He limited it to three for one in the utmost degree of inexperience, without going beyond, the need to prevent undercharging being met by the three days; there remains the principle of the report, the need of the seller and the buyer, and the option is established for both of them.
If it exceeds three days, the sale is void according to the Shafi'is and Zufar, for it was concluded in a corrupted state and cannot revert to soundness. From Anas: a man bought a camel and stipulated the option for four days; the Prophet (peace and blessings of Allah be upon him) annulled the sale and said: the option is only three days (reported by Abd ar-Razzaq in his Musannaf; the chain contains Abban ibn Abi Ayyash, who is weak and whose hadith carries no authority).
According to Abu Hanifa, the sale is void, unless the option-holder confirms it within the three days, or dies within the three days, or performs within it an act requiring the binding of the contract: it then reverts to being permissible; for by confirming it within the three days he removed the corrupting element before its establishment, the corruption lying in the fourth day, to the point that the contract is only corrupted by the elapse of part of the fourth day, the contract being sound before that. And the period is a period attached to the contract, preventing its conclusion: it is therefore permissible for it to be concluded by its removal, like the valid option (Bada'i' as-sana'i', 5/174, 175; al-Jawhara an-nayyira, 3/32, 33; al-Lubab, 1/361; al-Ikhtiyar, 2/15; Mukhtasar al-Wiqaya, 2/45; al-'Inaya, 8/444, 445; Tabyin al-haqa'iq, 4/14; al-Bahr ar-ra'iq, 6/3, 4; al-Majmu', 9/180; Rawdat at-talibin, 3/101, 103; al-Bayan, 5/29; al-Najm al-wahhaj, 4/116, 117; Mughni al-muhtaj, 2/492, 494; ad-Dibaj, 2/62, 64; Nihayat al-muhtaj, 4/13, 16; Sharh Muslim, 10/176, 177).
The Hanbalis, Abu Yusuf and Muhammad of the Hanafis, and Ibn al-Mundhir of the Shafi'is, held that the duration of the option may exceed three days, however long, provided it is known, unless they cut it short. This rests on the hadith: "Muslims are bound by their conditions" (sahih, cited earlier); and because it is a right dependent upon the stipulation: its measure reverts to the stipulator, so that it is permitted in it, like the term (ajal); and because the established text on the option of three days is reasoned by the need to prevent undercharging through deliberation and examination, which does not require limiting oneself to three days, for this may not be achieved within three: the whole is therefore entrusted to his judgment, like the need to defer payment of the price (Bada'i' as-sana'i', 5/174, 175; al-Istidhkar, 6/486; al-Mughni, 4/21; and other references).
The Malikis, in the widespread view, said: since the option is a kindness toward the two traders for examining, deliberating and choosing, the term of the option differs according to what they exchange, in proportion to their need; for the meaning of the option is the choosing of the goods, and it must therefore be delimited by the time during which examining the goods is possible, which varies according to the goods. The text came only as an indication of this meaning, belonging to the category of the particular employed in its general sense.
The maximum period of the option for real estate (land and what is attached to it of building or trees) is thirty-six days, on account of examining its walls, foundations, appurtenances, location and neighbors; houses and land are equivalent, as is the rest of the types of real estate. It is not permitted for the buyer, during the period of the option, to dwell in the purchased house if it is substantial, free of rent, whether the dwelling is for examining it or not, stipulated or not; he may examine it without dwelling in it. The sale is corrupted if he stipulates dwelling within the body of the contract, for it is a condition contrary to the purpose of the sale: it is not permitted to dispose of the goods until it has entered the ownership of its buyer. Dwelling during the period of the option for a rent is permitted absolutely, whether the house is substantial or modest, for examining it or for other purposes, stipulated or not, like the modest one whose examination is of no account; if he dwells in a substantial or modest house for other than examining it, without authorization, he is a trespasser and the rent is owed by him. The duration of the option for commodities (clothes, a ship, a book and the like) is three days.
As for the option on a riding animal, it falls into three situations. The first: for examining its condition without riding it (fatness or leanness, abundance or frugality of its feeding, its carrying strength or weakness): the duration is three days; it has been said that its limit is five days; likewise for an animal not meant to be ridden, such as a cow, or meant to be ridden without the examination by riding being stipulated: if examination by riding is stipulated, the duration of the option is one day, or the like. The second: for examining its riding within the town: the duration is one day. The third: for examining its riding outside the town: the duration is one barid (a day's postal distance) according to Ibn al-Qasim, and two barids according to Ashhab. As for chickens, birds and the rest of the animals that have no work, the apparent position is that the duration of the option is not of that sort, on account of the swiftness with which their condition changes: the duration of the option in them is therefore the time during which the animal has not changed; and the rest of the fruits and foods that spoil with time are compared to them. In the Mudawwana: whoever buys fresh fruits or vegetables with the option, if people customarily consult others about such things and need their advice, have the option to the measure of their need, concerning what neither changes nor spoils; and the sale is corrupted if concluded upon an option exceeding that of such goods, or of what is comparable to it in value (al-Istidhkar, 6/485; Tahbir al-Mukhtasar, 3/579, 582; ash-Sharh al-kabir, 4/149; at-Taj wa-l-iklil, 3/423, 426; Mawahib al-jalil, 6/252, 255; Hachiyat al-Adawi, 2/203; ash-Sharh as-saghir, 6/408; Bidayat al-mujtahid, 2/157, 158; al-Fawakih ad-dawani, 2/83; Sharh Mukhtasar Khalil, 5/109, 110).
If the duration of the option is unknown (the arrival of so-and-so, the birth of a child to such a person while no pregnancy exists, the clearing of the goods' market while there are no goods, or the customary presumption that the market will clear), the sale is corrupted, and the corruption persists in all these cases, even if the condition is waived. If the term is known by custom, such as the arrival of the pilgrim and the like, it is permitted, provided it does not exceed the recognized duration for that goods. If the contract is concluded "at option" without any duration, known or unknown, being specified, the contract is valid, and the option is modeled upon what is customary for such goods; if he exceeds for the duration of the option the recognized limit for it, the sale is corrupted (al-Mudawwana al-kubra, 10/199; al-Istidhkar, 6/486; at-Tamhid, 14/32; Bidayat al-mujtahid, 2/158; Tahbir al-Mukhtasar, 3/582; Hachiyat al-Adawi, 2/203; Mawahib al-jalil, 6/258; Sharh Mukhtasar Khalil, 5/111; at-Tawdih, 5/414).
The Malikis, the Shafi'is and the Hanbalis, according to one narration, said: yes, the sale is corrupted; for it is a contract joined to a corrupted condition, like the shighar marriage; and because the seller only consented to give for this price with the option of taking it back, and the buyer only consented to pay this price with the option of rescission; were we to validate it, we would remove from each of the two his property against his will and bind him to what he did not consent to; and because the condition takes a share of the price: if we remove it, the share of the price that falls away must be refunded, which is unknown, so that the price becomes unknown and the contract corrupted by it. The other narration of the Hanbalis: the contract is not corrupted, according to the hadith of Barira; and because the contract was completed by its pillars, the condition being an addition: when it becomes corrupted and vanishes, the corrupted element falls away and the contract remains upon its two pillars, as if nothing had been stipulated (Bada'i' as-sana'i', 5/174, 175; al-Istidhkar, 6/486; al-Mughni, 4/21; and other references).
Khiyar al-shart is established in some contracts by consensus of the scholars, is not established in others by their consensus as well, and some contracts are subject to divergence between widening and restricting; the widest of the scholars is the Shaykh al-Islam Ibn Taymiyya, who said that khiyar al-shart is permitted in all contracts (al-Insaf, 4/375). The detail is as follows:
The Hanafis stated in explicit text that khiyar al-shart is established in the corrupt sale as in the permissible sale, to the point that if one sells a slave for a thousand dirhams and a pound of wine at option, and the buyer takes him with the seller's authorization and then manumits him within the three days, the manumission takes no effect; without the seller's option, manumission after taking possession would take effect. Ibn Abidin (may Allah have mercy on him) said: it follows from this the validity of manumission after the lapse of the period, due to the disappearance of the option, and this is apparent. And as khiyar al-shart is established in a corrupt sale, khiyar al-'ayb is likewise established in it, and the buyer, after taking possession, may return it for cause of defect, judicially or without a judgment. As for the Malikis, I have not come upon any statement of theirs regarding what receives khiyar al-shart, except for sarf, salam and waqf (Hachiyat Ibn Abidin, 6/77, 89; al-Fatawa al-Hindiyya, 3/39; Durar al-hukkam, 3/165; 'Iqd al-jawahir, 2/695; al-Jami' li-masa'il al-Mudawwana, 13/834; al-Mukhtasar al-fiqhi of Ibn Arafa, 8/224, 225; Hachiyat ad-Dasuqi, 5/455; and other references).
The jurists differed in the case where one of the contracting parties, or both, stipulates the option for a third party outside the contract: is it valid? The majority of jurists (Hanafis, Malikis, Hanbalis, and the Shafi'is in the most apparent view) said that it is permitted to stipulate the option for a third party, whether the stipulation comes from both contracting parties or from one of them, and whether the person for whom the option is stipulated is a single designated person for both, or a different person for each from the one stipulated by the other, as the Shafi'is stated in explicit text; for the option was instituted by their condition for a need, and need may require stipulating the option for a third more knowledgeable than they about the goods: annulling it is therefore not permitted while its validation is possible, according to the words of the Prophet (peace and blessings of Allah be upon him):
"Muslims are bound by their conditions."Sahih, cited earlier
In another version: "Muslims are bound by their conditions, insofar as they accord with the truth."Reported by al-Daruqutni (2932), al-Hakim in al-Mustadrak (2/57) and al-Bayhaqi in al-Kubra (14213), with a weak chain
The Hanbalis said: this ruling is permitted if the option is granted to the third party without qualification, or if one says "to me and to him"; but if the option-holder says "I stipulate the option for the third party to the exclusion of myself," the condition is not valid according to the sound view of the madhhab; for the option was instituted to secure a share for each of the two contracting parties, and it is therefore not valid to establish it for one who has no share in it. The apparent meaning of Imam Ahmad's words is that it is valid as well. According to this principle, each of the stipulator and the third party for whom the option was stipulated may, during the period of the option, confirm or rescind: whichever confirms, it is done; whichever rescinds, the sale is rescinded; and the third party is not required to give precedence to what is most advantageous for the stipulator.
If one of the two confirms or rescinds before the other, the Hanafis said: the first of the two acts, confirmation or rescission, is the one that counts, for it occurred at a time when no other contested it, and the later act has no effect. If one rescinds and the other confirms in the very same instant, the side of rescission prevails, for the option was instituted for him: his side is therefore more entitled. The Shafi'is, in the most apparent view, said: each of the two has independence in rescission; if one rescinds and the other chooses confirmation, rescission is given precedence. As for the Malikis, the madhhab is agreed: the option for the third party, when the two traders grant it to him, is binding upon them. The madhhab differs when one of the two grants the option to the third party: it has been said that the third party's word decides between confirmation and rejection, whether it was the seller or the buyer who stipulated the option; the opposite has been said for the one who established his option here in the manner of consultation; a distinction has been made between seller and buyer: the seller's word prevails over the third party's, and the third party's word prevails over the buyer's if it was the buyer who stipulated the option; it has been said: the word is that of whichever of the two wants confirmation, so that if the seller wants confirmation while the third party for whom the option was stipulated wants rejection with the buyer's agreement, the word is the seller's for confirmation; and if the seller wants rejection and the third party confirmation with the buyer's agreement, the word is the buyer's; the same applies if the buyer stipulates the option for the third party. This distinction between seller and buyer has also been made here. Ibn Rushd said: all of this is weak (Bidayat al-mujtahid, 2/160).
The Shafi'is, according to the second view, Zufar of the Hanafis, and the judge of the Hanbalis, held that stipulating the option for a third party is not valid; for the option is a condition to secure a share for each of the two contracting parties according to his own consideration: it cannot therefore belong to one who has no share in it; and because it is a ruling among the rulings of the contract, not established for any besides the two contracting parties, like the other rulings, unless the one who established the option deputizes him: if he deputizes him, it is valid (Bada'i' as-sana'i', 5/271; al-Ikhtiyar, 2/17; al-'Inaya, 8/473; Tabyin al-haqa'iq, 4/19; al-Bahr ar-ra'iq, 6/21, 22; Majma' al-anhar, 3/44; Durar al-hukkam, 1/248; Bidayat al-mujtahid, 2/160; al-Furuq, 3/455; Tahbir al-Mukhtasar, 3/586; Sharh Mukhtasar Khalil, 5/115; at-Taj wa-l-iklil, 3/431; al-Majmu', 9/186, 187; Rawdat at-talibin, 3/103, 104; Mughni al-muhtaj, 2/492; Hachiyat Qalyubi, 2/489; al-Mughni, 4/19; al-Kafi, 2/45; Sharh az-Zarkashi, 2/9, 10; al-Mubdi', 4/69; al-Insaf, 4/376; Kashshaf al-qina', 3/236).
The Shafi'is and Hanbalis stated in explicit text that it is permitted to differentiate the periods of the stipulated option, by stipulating a period for one of the two and a shorter period for the other; for it is their right, and the option was only permitted as a kindness toward them: according to whatever they agree upon, it is permitted (Rawdat at-talibin, 3/103; Mughni al-muhtaj, 2/492; Hachiyat ash-Shirwani on Tuhfat al-muhtaj, 4/342; Hachiyat Qalyubi, 2/488; al-Mughni, 4/19; Matalib uli an-nuha, 3/91; al-Insaf, 4/376; Kashshaf al-qina', 3/337).
I have found no text of the Hanafis and Malikis on this matter, although the import of their words does not contradict permissibility. In the book al-Makharij fi-l-hiyal of Muhammad ibn al-Hasan ash-Shaybani: a man orders another to buy a house for a thousand dirhams and informs him that if he does so, he will buy it from him for a thousand and one hundred; the one ordered fears that, if he buys it, the one giving orders will no longer want to buy it. He said: let him buy the house with the option of three days, take possession of it, then the one giving orders comes and says to him: "I take it from you for a thousand and one hundred," and the one ordered says: "It is yours at that price." It was only said "the one giving orders begins by saying: I take it from you for a thousand and one hundred" because, if the one ordered began by saying "I sell it to you," he might no longer want it, and the option of the one ordered would lapse; the precaution was therefore that the one giving orders begin, so that when the one ordered says "it is yours at that price," the sale is concluded between them; and if the one giving orders does not want to buy it, the one ordered can return it by the condition of option, the harm thereby being averted from him.
Ibn al-Qayyim (may Allah have mercy on him) gave the following example: a man says to another: "Buy this house or these goods from so-and-so for such a price, and I will make you a profit on it of such and such." He fears that, if he buys it, the one giving orders will lose interest and no longer want it, without his being able to return it. The trick is that he buy it with an option of three days or more, then say to the one giving orders: "I have bought it as you said": if he takes it, well and good; otherwise he can return it to the seller by the option. If the one giving orders will only take it with an option, the trick is to stipulate for him an option with a period shorter than the one he stipulated toward the seller, so that his time for restitution widens if it is returned to him (I'lam al-muwaqqi'in, 4/29).
The jurists differed in the case where, after the sale has become binding, an option is added in the contract: does it attach to it and is it valid? Each madhhab has its detail. The Hanafis said that it is permitted to attach khiyar al-shart to the sale: if one of the two says after the sale, even after several days, "I grant you the option for three days," it is valid by consensus. If they then stipulate more than three days, the contract is corrupted according to Imam Abu Hanifa, for it is the maximum duration of the option according to him, contrary to Abu Yusuf and Muhammad, who said that an option of more than three days is permitted. Just as a corrupted condition is attached to the sale, it attaches to it and corrupts the contract according to him, while according to them it does not corrupt it and the condition is void (Sharh Fath al-Qadir, 6/300; al-Bahr ar-ra'iq, 6/3; al-Lubab, 1/361; Hachiyat Ibn Abidin, 4/568).
The Malikis said that the option, after the sale has been definitively concluded, is valid categorically for the buyer or the seller, whether one of them establishes it for his companion, whether each establishes it for the other, or for a third party, after the sale has been settled, provided the price has been paid to the seller. As for combining settlement and option in a single contract, it is prohibited: the dispensation leaves its proper place, for the permission of the option is a dispensation; the option indeed contains an uncertainty, each of the two traders not knowing what will come to him, the price or the merchandise, since he does not know whether the contract will be concluded or not; in itself it ought to be prohibited, but the Lawgiver made a dispensation in it and permitted it on its own: it is a mu'tanaf sale, like the buyer's sale of those goods to someone other than the seller; and its guarantee, when it occurs after the settlement, is at the buyer's charge, for he becomes a seller at that moment. If the price is not paid, it is not valid; for if he does not pay it, he will have squandered the seller's property in his obligation for a specified thing whose taking possession is deferred (Tahbir al-Mukhtasar, 3/581; Sharh Mukhtasar Khalil, 5/111; Hachiyat ad-Dasuqi with ash-Sharh al-kabir, 4/152).
The Shafi'is said: stipulating the option after the contract, within the session, is valid according to the most apparent view; but stipulating in the contract an option beginning the next day (saying for instance "I sell to you now on condition that I have the option from tomorrow") renders the contract void, for otherwise it would come to making it revocable after it has become binding (Rawdat at-talibin, 3/103; Mughni al-muhtaj, 2/495; al-Iqna', 2/285; Hachiyat Qalyubi, 2/488).
The Hanbalis said: adding an option in the contract after its binding character, the option does not attach to it; for it is a binding contract which does not become revocable by their words, like marriage. If they do this during the period of the session, it is like the contract's taking effect at the beginning of the option period after its expiry: on this basis, if they remain together in the session of the sale for four days, then separate before rescission or confirmation, the option is established for the four days by the Law (khiyar al-majlis), and beyond them, the option is established by the condition (khiyar al-shart). If they stipulate that the beginning of khiyar al-shart is the moment of the contract, the Shafi'is and Hanbalis have two views: the sounder of the two is that the condition and the sale are valid, for the beginning of the option is known; the other view: the condition is not valid, for it removes the very cause of the contract, and khiyar al-majlis dispenses with any other option, so that its establishment is prevented; does the sale then become void? The Shafi'is have two views (Rawdat at-talibin, 3/102; al-Bayan, 5/34, 35; al-Mughni, 4/20; al-Insaf, 4/375, 376; Kashshaf al-qina', 3/236).
The scholars differed in the case where one sells during the day and stipulates the option until nightfall or until tomorrow: do the night or the next day enter into the period of the option? The majority of jurists (Malikis, Shafi'is, Hanbalis, and the two companions of Abu Hanifa) said: if a man buys goods and stipulates the option until nightfall or until tomorrow, the option is interrupted at the onset of the night or at daybreak, and the night or the next day do not enter into the period of the option; for the particle "until" is set to mark the final limit, and what is after it does not enter into what precedes it, as in the words of the Most High: "Then complete the fast until the night" (Surah 2, 187).
"Then complete the fast until the night."
Surah 2, 187
It is the same with the term: if one says "you are divorced with one to three divorces," or "you have a claim on me of one dirham to ten," the tenth dirham and the third divorce are not included; and there is no doubt here. It is also because the original rule is to carry the expression upon its place of fixation, as if the founder of the language had said: when you hear this expression, understand from it the final limit. And because the origin is the binding character of the contract, permission to break it being granted only for what the condition requires: what is certain is therefore established, and whatever we are in doubt about reverts to the origin.
Abu Hanifa (and it is a view transmitted also among the Hanbalis) said: if the option is stipulated until nightfall or until tomorrow, the night and the next day enter into the period of the option; for what is intended by the final limit here is to exclude what comes after from the ruling of what precedes; final limits divide into a limit of exclusion and a limit of establishment. The limit of exclusion is included within that to which it is applied, as in the words of the Most High: "Wash your faces and your hands up to the elbows" (Surah 5, 6). The final limit here is in the sense of a limit of exclusion: do you not see that were no time mentioned at all, the option would be established for all times, until it is no longer valid, for it would be as if an everlasting option were stipulated; unlike deferral to a term: without the mention of the limit, the term would not be established at all, so that the limit is here a limit of establishment, not included within that to which it is applied. And because the option is established with certainty, which doubt does not remove (Bada'i' as-sana'i', 5/267, 268; al-Jawhara an-nayyira, 3/34, 35; al-Fatawa al-Hindiyya, 3/40; al-Hawi al-kabir, 5/69; Ikhtilaf al-fuqaha, 1/74; al-Majmu', 9/182; Rawdat at-talibin, 3/101; Asna al-matalib, 2/51; Jawahir al-'uqud, 1/50; al-Mughni, 4/20).
The scholars differed over the ownership of the goods during the period of the option: in a sale at option, does ownership pass to the buyer by the contract itself? The apparent position of the madhhab of the Hanbalis, which is one of the views of al-Shafi'i and a view of the Malikis, is that ownership passes to the buyer in a sale at option by the contract itself; for sale is a transfer of ownership, as the formula "I sell to you" expresses, by which ownership is established, like the rest of the sale. What confirms it is that the transfer of ownership indicates the passing of ownership to the buyer and that its wording requires it, and that the Law has taken it into account and judged its validity: it must therefore be taken into account in what it requires and what its wording indicates; and the establishment of the option in the sale does not hinder it, just as if one exchanged goods for goods and each found a defect in what he bought: the possibility of rescission implies no deficiency of the contract and does not prevent the transfer of ownership, as in the sale of a defective item; and the impossibility of disposing exists only because of the right of another, which does not prevent the establishment of ownership, as with the pledged property and the goods sold before taking possession.
The Malikis, in the widespread view, al-Shafi'i according to one view, and Ahmad according to a narration, held that ownership does not pass to the buyer until the option expires: during it, ownership belongs to the seller, and the guarantee weighs upon him. Al-Shafi'i's third view is that ownership is suspended, held in abeyance: if they confirm the sale, it becomes clear that ownership is the buyer's by the contract itself; otherwise, it becomes clear that it did not leave the seller. And where ownership of the goods is judged to belong to one of the two, ownership of the price is judged to belong to the other; and where it is suspended, that of the price is suspended too.
The Hanafis said: the seller's option prevents the goods from leaving his ownership, and the buyer cannot dispose of them, even if he took them with the seller's authorization; as for the price, it leaves the buyer's ownership by consensus. Does it enter the seller's ownership? According to Abu Hanifa, no, for that would lead to gathering the two counter-values in a single ownership. According to Abu Yusuf and Muhammad, yes, so that it does not result that the price has no owner. The buyer's option does not prevent, by consensus, the goods from leaving the seller's ownership; does it enter the buyer's ownership? There is divergence: according to Abu Hanifa, the goods do not enter the buyer's ownership, for the price remains his property: were he to become owner of the goods, the two counter-values would gather in his ownership, which is not valid. According to the two companions, it does enter; for the goods have left the seller's ownership: if the buyer did not own them, they would be ownerless, belonging to no one, and the Law knows nothing of that. Its upkeep (nafaqa) is owed by the buyer by consensus when the option is his, for it has left the seller's ownership; and the price does not leave the buyer's ownership by consensus.
If the buyer disposes of the goods during the period of the option and the option is his, his disposition is permitted by consensus and constitutes confirmation. When the option belongs to the buyer, the sale takes effect through four means: the first, that he say "I confirm," whether the seller is present or absent; the second, that the buyer die during the period of the option: his option lapses by his death, his contract takes effect, and the heirs do not stand in his place, neither in rescission nor in confirmation; the third, that the period of the option elapses without rescission on the part of its holder; the fourth, that the goods, in the buyer's hand, reach a state in which he can no longer rescind: whether they perish or diminish in his hand, slightly or seriously, by the act of the buyer, of the seller, by a heavenly calamity, by the act of a third party, or by the act of the object of the contract: his option lapses and the sale takes effect (al-Jawhara an-nayyira, 3/35, 41; al-Muhit al-Burhani, 6/586, 587; al-Hidaya, 3/28; Tabyin al-haqa'iq, 4/16; al-Bahr ar-ra'iq, 6/13; Majma' al-anhar, 3/37; al-Lubab, 1/362; al-Mudawwana al-kubra, 4/19, 196; Tahbir al-Mukhtasar, 3/591; ash-Sharh al-kabir, 4/167, 168; Sharh Mukhtasar Khalil, 5/120; Nihayat al-matlab, 5/40, 41; Rawdat at-talibin, 3/105; Mughni al-muhtaj, 2/495; al-Mughni, 4/10; al-Kafi, 2/48; al-Insaf, 4/389).
The jurists differed over the ruling on the increases of the goods, attached or detached, during the period of the option: do they belong to the seller, to the buyer, or are they held in suspense? The Hanafis said: if the goods increase, during the period of the option and in the buyer's possession, by an increase attached and generated from the original itself, such as fatness or the healing of the pus of an illness, this prevents restitution and rescission, the option is nullified, and the sale takes effect according to Abu Hanifa and Abu Yusuf, like the decrease; according to Muhammad, restitution is not prevented and the buyer remains upon his option.
If the increase is attached without being generated from it (dyeing, sewing, kneading of sawiq), or if it is land on which the buyer has built or planted, restitution is prevented by consensus and the sale takes effect. If the increase is detached but generated from the goods (the offspring, the milk, the fruit, the compensation for injury, the gravid animal), restitution is likewise prevented, the option is nullified and the sale takes effect. If it is detached without being generated from it (earnings, a gift, yield), restitution is not prevented and the buyer remains upon his option; except that if he chooses the sale, the increase belongs to the owner together with the original, by consensus; if he chooses rescission, the original is returned together with the increase according to Abu Hanifa. Abu Yusuf and Muhammad said: only the original is returned, and the increase belongs to the buyer; for their madhhab is that the goods enter the buyer's ownership, whereas according to Abu Hanifa they do not enter it, so that the increases issue from the seller's ownership and he must return them to him (al-Jawhara an-nayyira, 3/38).
The Malikis said: the yield produced during the days of the option upon the goods, such as milk, eggs and fruit, belongs to the seller; likewise the injury-compensation taken from the third party who wronged the goods during the days of the option belongs to the seller. When the seller takes the compensation, the buyer is then given the choice: to take the defective item free of charge, or to return it owing nothing. What was given as alms or bestowed upon the slave during the days of the option likewise belongs to the seller, and it is he who bears the slave's upkeep during the days of the option. As for the offspring, it belongs to the buyer and not to the seller, for it is not a yield: it is like a part of the goods, as is the wool, shorn or not (Tahbir al-Mukhtasar, 3/591; ash-Sharh al-kabir, 4/168; Sharh Mukhtasar Khalil, 5/121; Minh al-jalil, 5/133).
The Shafi'is said: the increases occurring in the goods during the period of the option are either attached or detached. As for the attached increases: no effect is recognized in them, and they belong to whoever the ownership of the original settles upon. As for the detached increases: among them are earnings, milk, fruit and eggs; if the sale is confirmed, they belong to the buyer, according to the view that ownership is his during the period of the option or that it is suspended. According to the view that ownership during the period of the option belongs to the seller, the increase and the earnings of the goods have two views: the majority said the earnings belong to the seller, for ownership was his at the moment they arose. Abu Ali al-Tabari said: they belong to the buyer, for the cause of his ownership existed first and ownership settled upon him at the end, which suffices. If the sale is rescinded during the period of the option after the earnings have arisen, they belong to the seller according to the view that ownership is his during the option or suspended; according to the view that it belongs to the buyer, there are two views: the sounder is that they belong to the buyer, and Abu Ishaq said: to the seller. The Imam of the Two Sanctuaries (al-Juwayni, may Allah have mercy on him) said: the substance of the divergence and the agreement regarding confirmation and rescission is as follows: whoever has gathered the ownership of the original and its settling upon him, the earnings belong to him without divergence; whoever had no ownership of the original, and to whom ownership did not come in the end, the earnings do not belong to him, without divergence; and if ownership belonged first to one of the two, then did not settle upon him but passed to his companion, the question has two views: that the earnings belong to him to whom ownership came in the end, or to him to whom it belonged at the moment the earnings arose. If a fruit comes into being, or the offspring of a slave, during the period of the option, the ruling is that of the earnings, word for word. Such are the increases during the period of the option (Nihayat al-matlab, 5/41, 42; Rawdat at-talibin, 3/106; Hachiyat Qalyubi and Umayra, 2/491, 492).
The Hanbalis said: whatever issues from the yields and detached growth of the goods during the period of the option belongs to the buyer, whether they confirm the contract or rescind it; according to the words of the Prophet (peace and blessings of Allah be upon him): "Revenue goes with liability to guarantee"; and this falls within the buyer's guarantee: its revenue must therefore be his; and because ownership passes through sale, its growth must be his, as after the expiry of the option. Ibn Qudama (may Allah have mercy on him) said: it follows that detached growth belongs to the seller if they rescind the contract, according to the transmission according to which ownership does not pass; as for attached growth, it follows the goods, whether they confirm the contract or rescind it, as it follows them in the right of return for defect and in barter (al-Mughni, 4/10, 11).
When the goods perish during the period of the option, whether before taking possession or after, and whether it is a thing whose condition cannot be hidden from him, like the animal, or a thing he may not know, like jewelry: does it fall within the seller's guarantee or the buyer's? The jurists have differed and given details. The Hanafis said: if the goods perish in the seller's hand, the sale is dissolved and nothing is owed by the buyer. If the buyer has taken them and they perish in his hand during the period of the option, the option being with the seller, he guarantees them for their value if they are not of a fungible kind (mithli), or for their like if they are fungible; for the sale has not taken effect, and a disposition without ownership has no effect: he is thus like one who takes possession of goods on trial, whose value is due. If the option is with the buyer and they perish in his hand, they perish through their price; for he finds himself unable to return them, and their price is therefore owed by him; the same applies if a defect enters them: the defect prevents restitution, and destruction is never without a premise of defect, so that they perish after the contract has become binding and the price is owed by him. The difference between the price and the value is that the price is what the two traders agreed upon, whether it exceeds the value or falls short of it, whereas the value is the appraisal of the thing in the manner of a standard, without addition or decrease (al-Jawhara an-nayyira, 3/35, 41; al-Ikhtiyar, 2/17; al-'Inaya, 8/452; al-Muhit al-Burhani, 6/586, 587; al-Hidaya, 3/28; Tabyin al-haqa'iq, 4/16; al-Bahr ar-ra'iq, 6/13; Majma' al-anhar, 3/37; al-Lubab, 1/362, 363; Majma' ad-damanat, 1/487).
The Malikis, in the widespread view, concerning goods sold at option, whether the option is with the seller or the buyer, said that if the buyer has taken them, then they are lost, or he claims their loss, and they are goods whose condition cannot be hidden from him, like the animal, he takes an oath, whether he is under suspicion or not, and the seller guarantees them, unless the buyer's lie appears: it then falls within his guarantee, his claim is not admitted and the guarantee weighs upon him. For example: he says "it was lost yesterday," and witnesses reply "we saw it yesterday"; or he says "it was lost the day before yesterday in the presence of so-and-so," and the latter replies "I had no knowledge of that"; or it is testified against him that he ate it, destroyed it or sold it: he then guarantees, and his oath is not admitted. If the thing is of the kind whose condition may be hidden from him, like jewelry and the like, and the buyer claims its loss, it falls within his guarantee, unless he produces proof of the truth of his claim: he is then believed, and the guarantee weighs upon the seller. When the buyer guarantees goods whose condition may be hidden from him, which he took while the sale was concluded with the option for the seller, he guarantees the greater of the price and the value; for the seller's argument is to say "I confirmed" if the price is greater, and "I returned" if the value is greater: this is the view of Ibn al-Qasim, unless the buyer swears that he did not destroy them and that they perished without his fault: he then guarantees only the price, as if the option were his and the goods had gone unnoticed, his claim of loss carrying only the price. Ashhab said: he guarantees the greater absolutely, and his oath is not admitted. If the option is with both, for goods whose condition may be hidden, the apparent position is to favor the seller's side, for ownership is then his: the buyer guarantees the greater of the price and the value if he does not swear to his lack of negligence, otherwise he guarantees only the price (al-Mudawwana al-kubra, 4/195, 196; Tahbir al-Mukhtasar, 3/591, 593; ash-Sharh al-kabir, 4/168, 169; Sharh Mukhtasar Khalil, 5/120, 121).
The Shafi'is said: if the goods perish through a heavenly calamity during the period of the option, and this is before taking possession, the sale is dissolved; if after, and we say ownership belongs to the seller, it is likewise dissolved: the price is returned and the buyer owes the seller the counter-value, namely the like or the value. If we say ownership belongs to the buyer or is suspended, there are two views: one holds that it is dissolved as well, for the destruction occurred before the settling of the contract, and the buyer owes the value on the day of destruction, since ownership was the buyer's before that. The sounder view: it is not dissolved, for it entered the buyer's guarantee through taking possession, and the authority of rescission has no effect, as in the option of defect. Its interruption likewise has two views: it is interrupted, as the option of return for defect is interrupted by the destruction of the goods; or, and this is the sounder view, it is not, as partnership is not prevented by the price of the goods, contrary to the return for defect, for the harm there is averted by the compensation. If we hold the first view, the contract settles and the price becomes due; if we hold the second, if the contract is confirmed, the price is due; otherwise, the value weighs upon the buyer and the price is returned; and if they dispute the measure of the value, the word is the buyer's with an oath. A portion of the companions ruled the absence of dissolution. Al-Nawawi (may Allah have mercy on him) reported that if we say ownership belongs to the seller, which is the apparent meaning of the author's words, the Imam reported that it was mentioned as a corollary that if the sale is not dissolved and the period of the option elapses, the seller must return the price and the buyer owes the value: the Imam said that this is a manifest confusion. He also said: if the buyer takes the goods during the period of the option and a destroyer destroys them before the option expires: if we say ownership belongs to the seller, the sale is dissolved as with destruction; if we say it belongs to the buyer or is suspended, we consider: if a third party destroyed them, the ruling is that of destruction; and if we say the contract is dissolved there, it is like a third party's destruction of the goods before taking possession; if we say it is not dissolved, which is the sounder view: it is the same here, the third party owes the value, and the option remains as it is: if the sale is confirmed, they belong to the buyer, otherwise to the seller; if the buyer destroys them, the price settles upon him. If he destroys them in the seller's hand and we count his destruction as taking possession, it is as if they perished in his hand; if he destroys them in the buyer's hand, the Tatimma states that it is reasoned like a third party's destruction or a loss by heavenly calamity, with a famous divergence: the judge Husayn said that if the seller destroys them in his own hand and we say ownership is his, the contract is dissolved for him; if we say it belongs to the buyer, its dissolution has two views; if we say it is not dissolved, the seller's option lapses, and the buyer's option has two views; if we say it does not lapse and he rescinds: if he confirms, he takes from the seller the value and returns the price to him. And if the buyer takes the goods during the period of the option then deposits them with the seller and they perish in his hand, it is as if they had perished in the buyer's hand (Rawdat at-talibin, 3/108, 109; al-Majmu', 9/207, 209; Nihayat al-matlab, 5/58, 60; al-Bayan, 5/48, 49).
The Hanbalis said: if the goods are lost during the period of the option, they are lost either before the buyer's taking of possession or after. If they perish in the seller's hand before the buyer's taking of possession, and they are goods measured or weighed, the sale is dissolved and they fall within the seller's property, unless the buyer destroyed them: they then fall within his guarantee, his option lapses, and the seller's option has two transmissions. If the goods are neither measured nor weighed and the seller did not prevent the buyer from taking possession, the apparent position of the madhhab is that they fall within the buyer's guarantee, like their destruction after taking possession. If the goods are lost after taking possession, during the period of the option, they fall within the buyer's guarantee and his option lapses; and the seller's option has two transmissions. The first: it lapses, and this is the choice of al-Khiraqi and Abu Bakr, for it is an option of rescission that lapses through the destruction of the goods, like the option of return for defect when the defective item perishes. The second: it does not lapse, and the seller may rescind and claim from the buyer its value; this is the choice of the judge and Ibn Aqil, according to the words of the Prophet (peace and blessings of Allah be upon him): "The two parties to a sale have an option as long as they have not separated"; and because it is an option of rescission that does not lapse through the destruction of the goods, just as if one exchanged a garment for a garment and one of the two perished while a defect appeared in the other: he returns it and recovers the value of his garment. Khiyar al-majlis and khiyar al-shart are identical in all of this. Ibn Qudama (may Allah have mercy on him) said: the guarantee of the goods weighs upon the buyer if he took them while they were neither measured nor weighed; if they perish, diminish, or a defect arises in them during the period of the option, they fall within his guarantee, for they are his property and their yield is his: they therefore fall within his guarantee as after the expiry of the option, and their upkeep weighs upon him (al-Mughni, 4/11; Sharh az-Zarkashi, 2/8; Manar as-sabil, 1/368).
Whoever sold a garment for a garment with an option of three days, and the days of the option elapsed without his bringing the garment, the sale became binding: there is no good in such a sale. This is a case in which Malik was alone, followed in it only by some of his companions (al-Istidhkar, 6/486; at-Tamhid, 14/30; Mawahib al-jalil, 6/261). Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: all those from whom tradition is preserved among the people of knowledge agreed that when the period of the option has elapsed before its holder rescinds, the sale is complete and becomes binding upon them at the very instant of the expiry of the period. He also said: they agreed that whoever sold and bought with an option of three, and the delay elapsed without rescission or confirmation, the sale reverts as if it had no option; if the option is with the seller, it has lapsed; if it is with the buyer, the sale binds him, with the exception of Malik, who said: if he rescinds the sale as the three draws to a close, his rescission is permitted, such as rescinding in the evening for the following morning (al-Iqna' fi masa'il al-ijma', 4/1725, 1726, no. 3366, 3368).
The jurists agreed that whoever holds the option, if he rescinds the sale during the period of the option, the sale is rescinded. Rescission takes place by word or by act. The word: saying "I have returned it," "I have rescinded it," "I have taken it back," and the like. Must it take place in the other's presence or not? Two views among the scholars. Abu Hanifa and Muhammad said that rescission is valid only if it takes place in the companion's presence; for the contract has had the right of each of the two contracting parties attached to it, and neither of them can therefore rescind it in the absence of his companion, like the deposit. The majority of scholars (Malikis, Shafi'is, Hanbalis in the madhhab, and Abu Yusuf) said that whoever holds the option may rescind even in his companion's absence and without his consent; for he is one of the two sides of the option, which therefore does not depend upon the presence of the two contracting parties, like confirmation; and because it is the lifting of a contract that does not require its author's consent: it must therefore not require his presence, as with one who divorces his wife.
According to Imam Ahmad, in the transmission of Abu Talib, rescission is obtained only by returning the price when the seller rescinds; the Shaykh al-Islam affirmed it categorically, like the pre-emptor. He said: the same applies to coercive appropriations, such as taking the plants or the construction from the borrower by way of loan or the lessee after the expiry of the lease period; and taking the harvest from the usurper when the owner of the land catches him before the harvest. Al-Mardawi said: this is the correct view from which one does not depart, especially in our time, for tricks have multiplied; and it is possible that the words of one who speaks without restriction bear upon this (al-Insaf, 4/377, 378).
As for rescission by act, the Hanafis defined it: that the price be in physical currency and that the buyer dispose of it as the money-changers do, whereupon the contract is rescinded, whether the seller is present or absent. Ibn Qudama (may Allah have mercy on him) said: if one of the two traders disposes, during the period of the option, of the goods by an act that transfers them (sale, gift, waqf) or occupies them (lease, marriage, pledge, contract of manumission by installments and the like), his disposition is not valid, except manumission, whether it comes from the seller or the buyer; for the seller disposes of what is not his property, and the buyer removes the seller's right to the option and to reclaiming the goods: his disposition of them is therefore not valid, like the disposition of pledged property; unless the option is reserved to the buyer alone: his disposition then takes effect and his option lapses, for no one else has any right in it, and the establishment of the option in his favor does not prevent his disposition, like the defective item. Ahmad said: if the option was stipulated and he then sold it at a profit before it elapsed, the profit belongs to the buyer, for it became due to him as soon as he offered it; that is, his option lapses and the sale binds him. And if we say that the sale does not transfer ownership, and the option belongs to both or to the seller alone, then the seller disposes of them: his disposition takes effect and is valid, for they are his property, and he may annul the other's option. Ibn Abi Musa said, concerning the buyer's disposition over the goods before separation, by a sale or a gift, that there are two transmissions: one holds it is not valid, for its validity would remove the seller's right to the option; the other holds it is suspended: if they separate before rescission, it is valid; if the seller chooses rescission, the buyer's sale is void. Ahmad said, in the transmission of Abu Talib: if he buys with a condition and then sells it at a profit before the condition expires, he returns it to its owner if he asks for it; if he is unable to return it, the seller has the value of the garment, for he consumed his garment, or they settle. His words "he returns it if he asks" indicate that the obligation of restitution is conditioned upon the demand. Al-Bukhari reported that Ibn Umar (may Allah be pleased with him) was with the Messenger of Allah (peace and blessings of Allah be upon him) on a journey, and that Umar's (may Allah be pleased with him) camel was hard to ride: it kept overtaking the Prophet (peace and blessings of Allah be upon him). His father said: Abdallah, let no one overtake the Prophet (peace and blessings of Allah be upon him). The Prophet (peace and blessings of Allah be upon him) said to him: "Sell it to me."
The continuation of this question: if he disposes of the goods with the buyer's authorization, it is possible that it be valid, for it is the indication of the rescission of the sale or the reclaiming of the goods: his disposition then takes place after the reclaiming; it is also possible that it not be valid, for the seller does not need the buyer's authorization to reclaim the goods: his disposition then becomes like a disposition without authorization, which is not valid. And every place where we have said "the seller's disposition takes no effect, but the sale is dissolved by it": as soon as he repeats that disposition, or makes another, it is valid; for the sale being rescinded, ownership returns to him and his disposition becomes valid, as if the sale had been rescinded by his explicit word and he then disposed of it. Likewise, if his disposition is preceded by that by which the sale is dissolved, his disposition is valid (al-Mughni, 4/11, 22; al-Jawhara an-nayyira, 3/38, 39; ash-Sharh al-kabir of ar-Rafi'i, 4/193; al-Jami' li-masa'il al-Mudawwana, 13/806, 811; al-Bayan, 5/35, 36; Rawdat at-talibin, 3/110, 111; al-Kafi, 2/47; Kashshaf al-qina', 3/237; al-Insaf, 4/377, 378).
The jurists differed in the case where the option-holder dies: does his option lapse by his death, or does it pass to the heir? The Malikis, the Shafi'is and a view transmitted among the Hanbalis held that, if he dies, the option passes to his heir; for it is an option established in a pure exchange: the heir stands therein in the place of the deceased, as with the right of return for defect. The Shafi'is said: this being established, if the heir knew of the sale and of his bequeather's death at the moment of his death, the option belongs to him for the remainder of the period; if he knew neither of them, nor of one of the two, until the period of the option elapsed, there are two views: one holds that the option is established for him for what remained of the period, from the moment of his knowledge; for the option having passed, by death, to someone other than the one for whom it was stipulated, it is fitting that it pass to a time other than the one stipulated. The other: the option is established for him immediately; for the period during which the option was stipulated having elapsed, it has fallen away, and the option remains: it is therefore immediate, like the return for defect.
The Hanafis and the Hanbalis, in the madhhab, held that if the option-holder dies, his option lapses and his contract takes effect; for death interrupts the option, and its interruption brings about the completion of the sale, like the elapse of the period: if both held the option and one dies, the sale is complete on his side and the other remains upon his option; if he dies, it takes effect against him, and the heirs do not stand in his place in rescission or confirmation; for it is a right of rescission that admits no deputation and is therefore not inherited, like the option of return in the gift; and because the seller or the buyer consented to the establishment of the option for the deceased, not for the heir; and because it is only a will and an intention whose transfer is not conceivable, inheritance taking place only in what admits transfer. The option not being inherited, it necessarily falls away, and the contract becomes binding, since rescission has become impossible (al-Jawhara an-nayyira, 3/39, 45, 46; al-Lubab, 1/364; Mukhtasar al-Wiqaya, 2/49; Tahbir al-Mukhtasar, 3/589; ash-Sharh al-kabir of ad-Dardir, 4/165; al-Jami' li-masa'il al-Mudawwana, 13/793, 795; Nihayat al-matlab, 5/27; al-Bayan, 5/37, 38; al-Mughni, 4/14).
No divergence exists among the jurists regarding the fact that the buyer, in a sale at option, is not required to pay the price in cash: he may defer payment, because of the possibility of rescission; and he may pay of his own accord, voluntarily, without that nullifying the option. They then differed over one who stipulates the cash payment of the price in a sale at option: is it permitted? The Hanafis, the Shafi'is and the Hanbalis held that there is no harm in stipulating the payment of the price and the taking of the goods during the period of the option; for it is a ruling among the rulings of the sale, permitted during the period of the option, like the lease in which disposition is not permitted. The Malikis said: stipulating cash payment in a sale at option is not permitted, and the sale is corrupted by that stipulation, even if he does not actually pay; for it becomes the equivalent of a sale and an advance; and because if he pays the price and then they mutually rescind, it would be as if he had lent it to him: a sale and a loan would then be combined. If the buyer pays the price without stipulation, voluntarily, it is permitted (Fath al-Qadir, 5/499; al-Fatawa al-Hindiyya, 3/42; al-Kafi, 1/343; adh-Dhakhira, 5/27; Sharh Mukhtasar Khalil, 4/171; Balghat as-salik, 2/464; al-Bayan, 5/38; Rawdat at-talibin, 3/110; al-Mughni, 4/14; Kashshaf al-qina', 3/243).
If he sells the goods on condition that, if the price is not paid within three days, there is no sale between them: the scholars differed; the Shafi'is prohibit it, while the Hanafis and the Hanbalis permit it. The Shafi'is said: whoever sells on condition that, if the price is not paid within three days, there is no sale between them, this is not a condition of option, but a corrupted condition that corrupts the sale. Likewise if the seller says: "I sell to you on condition that, if I return the price after the three days, there is no sale between us": this is not a condition of option, but a corrupted condition by which the sale is invalid; for he suspended the rescission of the contract upon a condition, which is not valid, as if he had suspended it upon Zayd's arrival; and because if suspending the completion of the contract upon an uncertainty is not permitted, suspending its rescission upon an uncertainty is not permitted either. Abu Hanifa said: the sale is valid; the first case amounts to establishing the option for the buyer alone, and the second for the seller alone.
Ibn Qudama (may Allah have mercy on him) said: if he says "I sell to you on condition that you pay me the price within three days or a known period, otherwise there is no sale between us," the sale is valid: this has been stated in explicit text; it is the view of Abu Hanifa, al-Thawri, Ishaq and Muhammad ibn al-Hasan; and Abu Thawr said so if the condition extends to three days; a similar statement was reported from Ibn Umar (may Allah be pleased with him). Malik said: it is permitted for two or three days and the like; if it is twenty nights, the sale is void. Al-Shafi'i and Zufar said: the sale is corrupted, for he suspended the rescission of the sale upon an uncertainty, which is not valid, as if he had suspended it upon Zayd's arrival. Our argument: this is reported from Umar (may Allah be pleased with him); and because he suspended the lifting of the contract upon an event occurring during the period of the option, which is permitted, like stipulating the option; and because it is a kind of sale that may be rescinded by the delay in taking possession, like sarf; and because it carries the meaning of a condition of option: just as he needs deliberation over the sale, to know whether he consents to it, he needs deliberation over the price, to know whether it will become cash or not: the two are identical in substance and different in form; except that in the option he needs to rescind, whereas here the contract is dissolved by his non-payment, for he made it so (al-Mughni, 4/23).
The Hanafis interpreted ghabn: what falls under the appraisal of the expert valuers is a slight ghabn, and what does not is a serious ghabn; for what the Law has not delimited reverts to custom; and this is a kindness toward people. Example: a sale concluded for ten, then some valuers say it is worth five and others seven: this is a serious ghabn, for it falls under no one's appraisal; unlike the case where some say it is worth eight, others nine, others ten: this is a slight ghabn. Consideration is given to the appraisal of the valuers, for they are the ones to whom one refers for defects and the other matters requiring expertise in transactions (Radd al-Muhtar, 5/143). The Malikis interpreted serious ghabn as what exceeds one third, according to the words of the Prophet (peace and blessings of Allah be upon him) in the bequest:
"The third; and the third is a lot."Reported by al-Bukhari (2593) and Muslim (1628)
The third having been described as "a lot". It has been said: one third; it has been said: one sixth; it has been said: what custom attests not to be of the ghabn occurring among merchants.
The condition for the establishment of the option: it is required, for the option by cause of ghabn to take place, that the victim of undercharging be inexperienced (mustarsil) and unaware of the undercharging at the time of contracting; if he knew of the ghabn and nevertheless entered into the contract, he has no option: he acted of his own accord, as if he had waived his right willingly.
The option by cause of ghabn is established, according to the Hanbalis, in three forms. The first: meeting incoming caravans, according to the words of the Prophet (peace and blessings of Allah be upon him):
"Do not meet the caravans; whoever meets them and buys from the middleman, when his owner comes to the market, has the option."Reported by Muslim (1519)
The second: najsh, which consists of bidding up the price of goods without wanting to buy them, in order to deceive the buyer, because of the Prophet's (peace and blessings of Allah be upon him) prohibition of najsh (Reported by al-Bukhari, 2142, and Muslim, 1516); the purchase is valid, for the prohibition reverts to the one who bids up, not to the contracting party; but he has the option if he suffers an undercharging. The third: the mustarsil, one who is ignorant of the value, whether seller or buyer, and who does not know how to bargain: he has the option if he suffers an undercharging out of ignorance of the goods, like the one arriving from a journey; and it is in this form that the ghabn is manifest.
Al-Mardawi (may Allah have mercy on him) said: al-Majd said that the option by cause of ghabn is established for the mustarsil in lease as in sale; except that if he rescinds after part of the period has elapsed, the rent of the like for that period is charged to him, not his share of the agreed price; for were his share of the price charged to him, he would not recover the harm of the ghabn; this differs from the case where a defect appears in a lease and he rescinds: his share of the agreed price is then charged to him, for he thus recovers his harm, the defect being returned together with his share. The Shaykh al-Islam (Ibn Taymiyya) said: if a lessee deceives the lessor and others until he leases without the value being respected, the rent of the like is due. And among its forms: for a man to say to another "sell to me as people sell": the sale is valid according to the Malikis; but if he suffers an undercharging going beyond usage, he has the option according to the widespread view (al-Insaf, 4/397, 398; Mawahib al-jalil, 6/325, 331; Sharh Mukhtasar Khalil, 5/152).
When it is established that the victim of undercharging is inexperienced and that the ghabn is beyond the ordinary, the victim has the option between rescission and confirmation, free of charge: this is the trigger, and there is no other, that is, if he keeps the goods, he may not claim any compensation, which here corresponds to the amount of the undercharging.
The option by cause of ghabn is extinguished, with deception, according to the Hanafis (according to what is authoritative, as contained in the Majalla), in the following cases:
The Hanafis, according to the apparent transmission, the Shafi'is, and Malik according to one of the two narrations (which is said to be the widespread one), held that whoever buys or sells a thing while suffering an undercharging in it, even a grave and serious one, has no option. This rests on what Abdallah ibn Umar (may Allah be pleased with him) reported: a man (Habban ibn Munqidh) mentioned to the Prophet (peace and blessings of Allah be upon him) that he was being cheated in sales, and he said:
"When you buy, say: no deception."Reported by al-Bukhari (2117) and Muslim (1533)
In a version: "When you buy, say: no deception, then you have the option for three nights over every goods you buy: if you are pleased, keep it; if you dislike it, return it."Reported by Ibn Majah (2355), graded hasan
If the ghabn established the option, the Prophet (peace and blessings of Allah be upon him) would have commanded him rescission without option; instead, he directed him to stipulating the option, so that he might make good his undercharging when needed; and had the option been established, he would not have limited it to three; rather he said to him "say: no deception," that is, no trickery, without the establishment of the option following from it. And because were the option established or established for him, it would be the affair of a specific case without generality: it is not inferred for others except by evidence. And because the goods are sound and no concealment was found on the seller's side: it is the buyer who neglected to verify, the return is therefore not permitted to him. And because the decrease of the goods' value, its object and benefit remaining intact, does not prevent the binding of the contract, as if he suffered a ghabn of a third, or if he were not inexperienced. The Shafi'is said: if he buys a glass vial for a high price imagining it to be a jewel, he has no option, without regard for the undercharging he suffers; for the shortcoming is his, in that he did not consult the people of expertise (Rawdat at-talibin, 3/124; al-Bahr ar-ra'iq, 6/126; and other references).
The internal divergence of the Hanafi school deserves to be known. According to the apparent transmission (zahir al-riwaya), return for a serious ghabn without deception does not take place: it is what does not fall under the appraisal of the expert valuers. But Ibn Nujaym reported in al-Bahr ar-ra'iq (6/125, 126), citing al-Quniyya, several variants: whoever buys a thing while suffering a serious ghabn, there are two transmissions, and the ruling is given in favor of return as a kindness toward people. Jassas (Abu Bakr ar-Razi) mentioned in his waqi'at that the buyer may return the goods and that the seller may reclaim them: this is the choice of Abu Bakr az-Zaranjari and of the judge Jalal, and most of the transmissions of the book of mudaraba retain return for a serious ghabn, upon which the ruling is given. According to the apparent transmission, there is neither return nor reclaiming; some give the ruling in favor of return absolutely; others, in favor of return if one of the parties deceived the other (the buyer deceives the seller or the reverse, or the broker deceives the buyer): this is the ruling given by Sadr al-Islam. The case where the seller says "its value is such," the buyer buys and it then appears that it is less, is also cited: the return is due to him; without that declaration, it is not. Likewise if the broker deceives: a man says to a spinner: "I know nothing of spinning, bring me yarn that I may buy"; a man brought the yarn to that spinner without the buyer knowing, acted as broker between them and bought that yarn for more than the price of the like; the buyer used part of it for his need, then learned of the ghabn and of what had happened: he may return the remainder while recovering his share of the price, and according to the sound view he returns the remainder and the like of what he used, while reclaiming the entirety of the price, like the one who buys a house full of barley in which there is a large shop: the full return is due to him along with the reclaiming of the entire price before he has spent anything; afterwards he returns the remainder and the like of what he spent, while reclaiming the price: this is what Abu Yusuf and Muhammad mentioned. Ad-Durr al-mukhtar (5/142, 143) summarizes: no return for a serious ghabn according to the apparent transmission, it being what does not fall under the appraisal of the expert valuers; the ruling is given in favor of return as a kindness toward people; if one of the parties deceived the other, return is due, otherwise not; and a disposition over part of the goods before knowledge of the ghabn is no impediment: he returns the like of what he destroyed and reclaims the entirety of the price according to the sound view. Ibn Abidin (may Allah have mercy on him) concluded in Radd al-Muhtar (5/142, 143) that the ruling given by Sadr al-Islam is the correct one: the two unrestricted views relate to the detailed view, as the commentator of the Tuhfa did; whoever gives the ruling today in favor of return without restriction commits a grave error; and he composed on this subject an epistle entitled Tahrir at-tahrir fi ibtal al-qada' bi-l-faskh bi-l-ghabn al-fahish bila taghrir.
The Hanafis and the Hanbalis named this option "option of defect" (khiyar al-'ayb), while the Malikis and the Shafi'is named it "option of diminution" (khiyar an-naqs) or "khiyar an-naqisa". In language, one says "he found fault with the goods for a defect": the agent is then called 'a'ib, and the one faulted ma'yub; the verb is transitive or intransitive; the intensive agent is 'ayyab; the noun is al-'ayb, its plural 'uyub; ma'yub designates the place and time of the defect (al-Misbah al-Munir; al-Qamus al-Muhit; Taj al-'Arus; al-Mu'jam al-Wasit; Lisan al-'Arab, entry "'ayb"; al-Bahr ar-ra'iq, 6/38).
The jurists defined it with near definitions. The Hanafis said: it is a diminution from which the sound original nature is free, by virtue of which the thing is counted as diminished. The original nature (fitra) is the disposition constituting the foundation of the original. Example: if he says "I sell you this wheat" while pointing to it, and the buyer finds it of poor quality without having known it, he has no option of return for defect; for wheat is created of good, poor and middling quality, and the defect is what the original sound nature is free of among the accidental afflictions: wheat struck by the dampness of the air, which prevented it from reaching full ripeness to the point that its grain became light, is defective, like mold, damp and the moth.
The defect according to the Law is what entails the decrease of the price according to the custom of the merchants; for what is intended is the financial decrease, through the lowering of the value; the criterion for knowing it is the custom of its people, that is, the merchants, or the craftsmen if the goods are manufactured; whether it diminishes or not the object or its benefits, for it entails the decrease of the price. The defect intended is the one that was with the seller, which the buyer saw neither at the time of the sale nor at the time of taking possession, with nothing from the buyer indicating his consent after knowing of the defect, and without the seller having stipulated exemption from that defect, specifically or generally (al-Mabsut, 12/185; Sharh Fath al-Qadir, 6/355; al-Jawhara an-nayyira, 3/57; al-Bahr ar-ra'iq, 6/38; al-Lubab, 1/371; Durar al-hukkam, 6/219).
Ibn Rushd the Maliki (may Allah have mercy on him) said: the defects that have an effect upon the contract are, according to all, what diminished the natural disposition or the legal disposition by a diminution having an effect upon the price of the goods; and this varies with the variation of times, habits and persons (Bidayat al-mujtahid, 2/31). Al-Ghazali (may Allah have mercy on him) said: the defect is every blameworthy attribute whose absence custom requires for the goods in most cases; it may occur through the loss of an attribute or its addition, through the loss of part of the object, such as castration, or its addition, such as the supernumerary finger (al-Wasit, 3/515).
The Hanbalis said: the defect is a diminution of the object of the goods, such as castration, even if the value does not thereby decrease but increases; or a decrease of its value according to the custom of the merchants, even if its object remains intact. It has been said: the defect is a diminution whose absence custom requires for the goods in most cases (Kashshaf al-qina', 3/250; Manar as-sabil, 2/31). The naqisa derives from diminution (naqs), and khiyar an-naqisa is contingent upon the loss of a part of the object of the contract whose realization was expected; that expectation arises from three things: the condition stipulating that attribute; the customary regularity of its presence; or the act of the contracting party creating the expectation of its presence. It is also called khiyar al-khalf (option of unfulfilled expectation) (Rawdat at-talibin, 3/113).
The people of knowledge agreed that whoever buys goods and finds in them a defect that was with the seller, without the buyer knowing of it, has the option between return with rescission and confirmation, whether the seller knew of the defect and concealed it or not. Several people of knowledge transmitted this consensus. The proofs of the return for defect come from the Quran, the Sunna, consensus and analogy.
They cited the generality of the words of the Most High: "Except in trade by mutual consent among you" (Surah 4, 29).
"O you who believe! Do not consume one another's wealth unjustly, except in trade by mutual consent among you."
Surah 4, 29
The defect in the goods contradicts the consent required in contracts: the contract tainted by a defect is a trade without mutual consent. The verse therefore indicates that the contracting party is not bound by the defective object of the contract: he has the right to return it and object to it, without regard for the path of return or the repairing of that breach in the equivalence of the exchange.
From Aisha (may Allah be pleased with her): a man bought a slave who remained with him as long as Allah willed, then he found a defect in him; he disputed the matter before the Prophet (peace and blessings of Allah be upon him), who ordered the slave's return. The man said: O Messenger of Allah, my slave has gained influence. The Messenger of Allah (peace and blessings of Allah be upon him) said:
"Revenue goes with liability to guarantee."Reported by Abu Dawud (3508), al-Tirmidhi (1285), al-Nasa'i (4490) and Ibn Majah (2242), graded hasan
Al-Khattabi (may Allah have mercy on him) said: revenue (kharaj) designates income and profit, as in the words of the Most High: "Or do you ask them for provision? The provision of your Lord is better" (Surah 23, 72). The slave who imposes a levy upon his master is called mukharij. The meaning of the Prophet's words (peace and blessings of Allah be upon him) "Revenue goes with liability to guarantee" is: when the goods are of those that yield income, the owner of the person, who is the guarantor of the original, owns the revenue along with the guarantee of the original. Thus, if a man buys land and cultivates it, or livestock that bear young, or a mount that he rides, or a slave whom he employs, then finds in it a defect, he may return it while owing nothing for what he benefited from; for were it to be destroyed between the contract and the rescission, it would fall within the buyer's guarantee: the revenue must therefore be part of his right (Ma'alim as-sunan, 3/147).
Ibn al-Mundhir (may Allah have mercy on him) said: the people of knowledge agreed that whoever buys goods and finds in them a defect that was with the seller, without his knowing of it, has the right of return (al-Iqna', 1/262, 263). Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: they agreed that whoever buys goods and then finds a defect in them has the right to return them, whether he paid the price or not. He also said: the whole body agreed that whoever buys goods has the right of return for defect when it appears to him. He said further: whoever buys an animal, goods or an estate and finds a defect in the goods, if he wishes he returns, if he wishes he keeps, whether the period is short or long, without dispute among the people of knowledge on this matter (al-Iqna' fi masa'il al-ijma', 4/1729, 1733, no. 3372, 3378, 3380). Ibn Qudama (may Allah have mercy on him) said: unless he finds in the goods a defect and returns them for it, or had stipulated an option for himself for a known period and may likewise return them; and there is no disagreement among the people of knowledge concerning the establishment of the return in these two cases (al-Mughni, 4/14). And he said: as soon as he learns of a defect in the sale of which he was unaware, he has the option between keeping and rescinding, whether the seller knew of the defect and concealed it or not, with no known divergence on this; and the Prophet's (peace and blessings of Allah be upon him) establishment of the option in the cash sale through his words "Sell it to me" is the indication of the establishment of the option for cause of defect.