Khiyar al-Shart: Duration, Ownership, Rescission and Stipulated Attributes

1. Introduction: the stipulated option

Once offer and acceptance complete a sale, it is ordinarily binding. The parties can nevertheless agree at formation that one or both may reconsider within a fixed period. This is khiyar al-shart, a stipulated option.

The chapter moves in sequence through the period of choice, ownership and loss, confirmation or rescission, and a promised attribute that proves absent.

Who holds the right to choose and who owns the goods are different questions. Keep them separate in every scenario.

2. Original: parties entitled to an option

خِيَارُ الشَّرْطِ جَائِزٌ فِي الْبَيْعِ لِلْبَائِعِ وَالْمُشْتَرِي، وَلَهُمَا الْخِيَارُ ثَلَاثَةَ أَيَّامٍ فَمَا دُونَهَا
Translation: A contractual option is valid for the seller and buyer; the option may be stipulated for three days or less.

The phrase lil-ba'i wa-l-mushtari establishes that the option is not restricted to a buyer. A seller can also reserve the option, and both may stipulate it.

Example: a book is sold for Rs 2,000 with an express two-day period for the seller to affirm or rescind. That illustrates the basic permission.

3. This differs from choice before acceptance

A choice to accept or reject an offer before acceptance is not the same as khiyar al-shart. The first situation arises before the contract is concluded.

In the stipulated option, a contract has been made, but an agreed right to affirm or unwind it remains for a specified period.

1. “I offer you this book” awaits acceptance.
2. “I accept, provided I have two days to decide” can establish the stipulated option if both parties agree.

4. Original: more than three days

وَلَا يَجُوزُ أَكْثَرُ مِنْ ذَلِكَ عِنْدَ أَبِي حَنِيفَةَ رَحِمَهُ اللَّهُ، وَقَالَ أَبُو يُوسُفَ وَمُحَمَّدٌ رَحِمَهُمَا اللَّهُ: يَجُوزُ إِذَا سَمَّى مُدَّةً مَعْلُومَةً
Translation: According to Abu Hanifah, an option exceeding three days is not permitted. Abu Yusuf and Muhammad allow it when a definite duration is specified.

The disagreement is not over the basic legitimacy of an option. It concerns its maximum duration.

Abu Hanifah: three days or less.
The two disciples: a longer option is valid if its duration is defined.

A fixed five-day option falls within the two disciples’ rule but exceeds Abu Hanifah’s limit.

5. Why a definite duration matters

A specified period such as two, three or five days makes the end of the option ascertainable. Phrases such as “whenever I wish” or “for some time” leave the period unclear.

A known duration reduces dispute and keeps the transaction from remaining indefinitely unsettled.

Ask two distinct questions:
1. Is the duration determinate?
2. Does it meet Abu Hanifah’s separate three-day ceiling?

6. Comparing three contractual options

Three offers illustrate the dispute:
1. One-day stipulated option: within both positions.
2. Three-day stipulated option: within both positions.
3. Seven-day fixed option: beyond Abu Hanifah’s ceiling but allowed by the two disciples because it is definite.

This is the duration of a stipulated contractual option, not necessarily the period of a separate right arising from defects or unseen goods.

7. Original: seller’s option and ownership

وَخِيَارُ الْبَائِعِ يَمْنَعُ خُرُوجَ الْمَبِيعِ مِنْ مِلْكِهِ
Translation: The seller’s stipulated option prevents the sold object from leaving the seller’s ownership.

When the seller reserves a stipulated option, Quduri states that ownership of the sold object does not leave the seller while this option persists.

Example: Zayd sells a watch for Rs 10,000 but keeps a two-day option. Delivery alone does not erase the rule about ownership during the seller’s option.

8. Possession is not the same as ownership

Possession means physical or effective control. Ownership is a separate legal status. They need not coincide.

When the seller has the stipulated option, the buyer may nevertheless hold the goods. The cited rule still keeps title with the seller.

It would therefore be incorrect to infer title automatically from mere physical delivery.

9. Original: valuation when goods perish

فَإِنْ قَبَضَهُ الْمُشْتَرِي فَهَلَكَ فِي يَدِهِ ضَمِنَهُ بِالْقِيمَةِ
Translation: If the buyer takes possession and the object perishes in his hands, he must compensate its value.

Quduri uses bi-l-qimah, meaning compensation according to the legally assessed value. It does not say bi-l-thaman here.

Example: the agreed selling price is Rs 8,000, while the property has an assessed value of Rs 7,000. If it perishes in the buyer’s custody during the seller’s option, the rule directs attention to value liability, not automatically the contract price.

Actual assessment and surrounding facts require separate verification.

10. Reason for liability by value

The seller’s option prevents transfer of title. Once the buyer has taken the property and it perishes, returning the same object is impossible.

The rule consequently uses the value of the object as the measure of liability.

Before selecting a liability measure, identify which party reserved the option. The following rule uses the contract price instead.

11. Original: the buyer’s option and ownership

وَخِيَارُ الْمُشْتَرِي لَا يَمْنَعُ خُرُوجَ الْمَبِيعِ مِنْ مِلْكِ الْبَائِعِ، إِلَّا أَنَّ الْمُشْتَرِيَ لَا يَمْلِكُهُ عِنْدَ أَبِي حَنِيفَةَ، وَعِنْدَهُمَا يَمْلِكُهُ
Translation: The buyer’s option does not prevent title from leaving the seller; under Abu Hanifah the buyer does not yet acquire it, whereas under the two disciples the buyer does.

This is a subtle distinction. Under Abu Hanifah, leaving the seller’s ownership and entering the buyer’s ownership need not occur together during the buyer’s option.

The two disciples hold that ownership does enter the buyer, although the buyer retains the right of choice for the agreed period.

Do not collapse these two classical positions into one.

12. Ownership map with a buyer’s option

When only the buyer holds the stipulated option:

Abu Hanifah: the object leaves the seller’s title, yet the buyer’s title is not established while the option remains.
The two disciples: title passes to the buyer.

Both positions recognize the buyer’s option. The difference is the legal consequence for ownership in the interim.

13. Original: price liability on buyer’s option

فَإِنْ هَلَكَ فِي يَدِهِ هَلَكَ بِالثَّمَنِ، وَكَذَلِكَ إِنْ دَخَلَهُ عَيْبٌ
Translation: If the object perishes in the buyer’s hands, liability follows the contract price; likewise if a defect arises while it is with him.

This time Quduri says bi-l-thaman, referring to the agreed price, unlike bi-l-qimah in the seller-option case.

Example: a watch is sold for Rs 10,000 with a two-day buyer’s option, then perishes in the buyer’s possession. The stated rule uses contract-price liability.

The text associates a subsequent defect with the same rule; the buyer cannot assume that a newly damaged article is returnable without consequence.

14. Qimah versus thaman

Thaman is the agreed contractual price.
Qimah is the assessed value of the property and may differ from that price.

Example:
Agreed price: Rs 12,000.
Assessed value: Rs 10,000.

For destruction in the buyer’s possession, Quduri uses value with a seller’s option and agreed price with a buyer’s option. Identify the option holder before applying the rule.

15. Original: cancellation and affirmation

وَمَنْ شُرِطَ لَهُ الْخِيَارُ فَلَهُ أَنْ يَفْسَخَ فِي مُدَّةِ الْخِيَارِ وَلَهُ أَنْ يُجِيزَهُ
Translation: The party given the option may rescind within the option period or affirm the sale.

Faskh means rescission; ijazah means affirming the sale as operative and binding.

The option is a real contractual power to choose within its prescribed period, not merely a chance to seek advice.

Example: the buyer has two days. Expressly confirming on day one is affirmation; declaring cancellation is an attempted rescission, subject to the additional rule in the next clause.

16. Original: the other party’s presence

فَإِنْ أَجَازَهُ بِغَيْرِ حَضْرَةِ صَاحِبِهِ جَازَ، وَإِنْ فَسَخَ لَمْ يَجُزْ إِلَّا أَنْ يَكُونَ الْآخَرُ حَاضِرًا
Translation: Affirmation is valid even without the other party present, whereas rescission requires the other party’s presence under the ruling stated here.

Quduri does not give identical procedural rules for affirming and rescinding.

Affirmation: valid even in the other party’s absence.
Rescission: requires the other party to be present under the stated rule.

Commentary explains presence in relation to the other party knowing of rescission. Applying this rule to modern communications requires its own legal analysis rather than treating every message as automatically sufficient.

17. Classical qualification about notice

Fath al-Qadir attributes the presence requirement to Abu Hanifah and Muhammad, while reporting that Abu Yusuf permits rescission in absence.

Quduri’s compact statement expresses the main rule; the commentary preserves the juristic qualification.

For a question on Quduri’s quoted wording, mention the presence requirement. For a question on the dispute, distinguish Abu Yusuf’s position.

18. How the option ends

The holder may affirm the sale during the agreed option period. Once the option is validly waived by affirmation, it cannot simply be reused to reverse the deal.

Similarly, a right restricted to a fixed period does not continue indefinitely after that period expires.

But the ending of khiyar al-shart does not automatically extinguish a separate remedy for a hidden defect; different remedies arise for different reasons.

19. Original: death of the option holder

وَإِذَا مَاتَ مَنْ لَهُ الْخِيَارُ بَطَلَ خِيَارُهُ وَلَمْ يَنْتَقِلْ إِلَى وَرَثَتِهِ
Translation: If the person holding this option dies, that particular option terminates and does not pass to the heirs.

This rule concerns this stipulated option. It should not be extended without examination to every kind of option or every financial right.

Example: a buyer reserves a two-day option and dies within that period. His personal khiyar al-shart does not transfer to heirs as the same option.

Other property rights and liabilities must be considered separately under the law of the estate and the contract’s status.

20. Do not generalize noninheritance

“The option does not pass to heirs” does not mean every possible right concerning defects, promised attributes or unseen goods necessarily has the same inheritance rule.

The final issue in this chapter, concerning a promised attribute that proves absent, is discussed separately by commentators.

A common label such as “option” does not guarantee identical causes or legal effects.

21. Original: a promised attribute is absent

وَمَنْ بَاعَ عَبْدًا عَلَى أَنَّهُ خَبَّازٌ أَوْ كَاتِبٌ فَكَانَ بِخِلَافِ ذَلِكَ فَالْمُشْتَرِي بِالْخِيَارِ: إِنْ شَاءَ أَخَذَهُ بِجَمِيعِ الثَّمَنِ وَإِنْ شَاءَ تَرَكَ
Translation: If a person was historically sold as an enslaved worker described as a baker or scribe, but lacked that promised skill, the purchaser could accept at the full agreed price or rescind.

This is a historical legal example from an earlier institution of enslavement; it does not validate present-day trafficking or sale of people.

The doctrinal point is failure of an expressly promised attribute. The remedy stated here is a choice between accepting at the full agreed price and rescinding, not an automatic discount.

22. An expectation is not a stipulated attribute

An unstated expectation and an expressly stipulated contractual attribute are not identical.

1. A buyer privately expects a machine to produce 100 units per day, but that ability is never agreed.
2. Seller and buyer expressly agree the machine can produce 100, but it can only produce 40.

The second is closer to the stipulated-attribute doctrine. Real cases depend on the terms and proof of the claim.

23. Full-price acceptance or return

Under the chapter’s basic rule, the buyer has two choices:

1. Accept the item at the entire agreed price, despite the missing attribute.
2. Rescind because the promised attribute was absent.

Example: a machine costs Rs 50,000 with a promised feature. The clause does not independently award a right to keep it for Rs 40,000. A separate voluntary settlement would be a different transaction.

24. Stipulated option versus attribute-based option

Khiyar al-shart: a right reserved in the sale for a stipulated period to affirm or rescind.
An attribute-based option: a specifically promised quality is found missing, giving a right arising from that failure.

The first focuses on the agreed period. The second asks whether the attribute was contractually promised and actually exists.

The noninheritance rule of the first is not automatically imported into the second.

25. Seller-option versus buyer-option summary

Seller’s option:
Title remains with the seller.
If goods perish in the buyer’s possession, the measure is assessed value.

Buyer’s option:
The goods leave the seller’s title; Abu Hanifah and the two disciples differ on the buyer’s title.
Loss or new defect in the buyer’s possession brings the agreed price rule.

These are distinct fact patterns.

26. Three options distinguished

1. The buyer reserves two days to reconsider: khiyar al-shart.
2. The buyer has not previously seen the goods and receives a choice upon inspection: khiyar al-ru’yah, addressed next.
3. A qualifying hidden defect is discovered: khiyar al-‘ayb, discussed in a later chapter.

The shared word “option” does not make these rights identical in cause, period or consequence.

27. Worked example: a two-day sale

Zayd sells a device to Bakr for Rs 15,000, with a two-day option for Bakr.

1. The duration is definite and within Abu Hanifah’s ceiling.
2. Because the buyer has the option, the classical disagreement on ownership applies.
3. If Bakr affirms within time, that affirmation ends the option.
4. If the device perishes in Bakr’s possession, apply the contract-price rule.

These are separate legal aspects of a single transaction.

28. Final legal checklist

Work through the chapter in order:

1. Which party or parties hold the option?
2. How long is the option and is the period defined?
3. Which juristic view on duration or ownership applies?
4. Who possesses the goods, and are they intact, destroyed or defective?
5. Was there an affirmation or rescission?
6. What do notice to the other party and the option holder’s death change?
7. Is the dispute really about an absent promised attribute, rather than the stipulated-period option?

29. Next: the option upon inspection

The complete consecutive text of Bab Khiyar al-Shart ends here. The next chapter addresses khiyar al-ru’yah: the right arising when the buyer finally views something bought unseen.

The key is to keep duration, option holder, ownership, liability, affirmation and rescission separate.

That framework will prevent a rule from one kind of option being mechanically transferred to another.