Rescission by Agreement: Original Price and Loss of Goods

1. What does iqalah solve?

A concluded valid sale normally binds both parties. A later change of mind does not, by itself, cancel the contract at the wish of only one party.

Iqalah is a consensual unwinding of the completed sale: the seller and buyer agree to return the original consideration and subject matter.

Example:
1. A shop sells a machine for Rs 50,000.
2. Buyer receives the machine, seller the price.
3. Both later agree to undo that sale; this is iqalah.

2. Iqalah at the original price

بَابُ الْإِقَالَةِ
الإقالة: جائزة في البيع بمثل الثمن الأول
Translation: Iqalah is permitted in a sale at the same price as the original transaction.

The central term is bi-mithl al-thaman al-awwal: return the original price. The seller gets back the goods and the buyer receives the original consideration.

If the item sold for Rs 50,000, the price returned on iqalah is Rs 50,000, not today's market valuation.

3. Iqalah, unilateral options and resale

Three categories must be distinguished:
1. A legal option (khiyar) can give one party a right to rescind under specified conditions.
2. Iqalah removes an earlier valid sale through mutual agreement.
3. A fresh sale is a separate transaction on new terms.

Returning a watch originally sold for Rs 50,000 by agreement is iqalah. Buying that watch today for Rs 45,000 as an independent contract raises a different legal classification.

4. Consent and the earlier sale

Iqalah presupposes a prior sale and mutual assent to undo it. Tearing up an invoice or changing one's mind alone is not enough.

Seller: “I will take back my goods and refund the original price.”
Buyer agrees, completing the consensual rescission arrangement.

A buyer's request alone ordinarily does not bind the seller to iqalah; an independently established legal option is a separate question.

5. Stipulating less or more

فإن شرط أقل منه أو أكثر فالشرط باطل ويرد مثل الثمن الأول
Translation: If a lesser or greater amount is stipulated in iqalah, that condition is void and the equivalent of the first price is to be returned.

The phrase fa-l-shart batil invalidates the stipulated modification of the original price; it does not simply describe iqalah itself as wholly void.

Examples:
1. Original Rs 50,000; condition says refund Rs 45,000: modification is invalid.
2. Original Rs 50,000; condition says refund Rs 55,000: equally invalid.
3. The operative starting point for iqalah remains the original Rs 50,000.

6. An increase demanded for cancellation

A seller might say: “I will reverse the sale, but you must add Rs 5,000 as a cancellation price.”

If that amount is a condition changing the consideration of iqalah itself, Quduri's akthar minhu rule rejects the increment.

This brief rule does not independently classify every separate shipping expense, proven loss or independent service contract; it concerns modification of the original price within iqalah.

7. Example: proposed smaller refund

Original sale: Rs 80,000. Buyer requests iqalah and the seller proposes only Rs 70,000 as the refund.

Treating the Rs 10,000 reduction as a binding new iqalah price contradicts the chapter's governing rule. A valid iqalah is assessed with reference to the original price.

Mistake: Both parties agreed, so every altered iqalah price must be binding.
Better distinction: Cancellation of the first sale and a separately concluded sale are distinct legal questions.

8. Rescission between parties, sale for others

وهي فسخ في حق المتعاقدين بيع جديد في حق غيرهما في قول أبي حنيفة
Translation: According to Abu Hanifah, iqalah is a rescission as between the contracting parties but treated as a new sale with respect to others.

Fi haqq al-muta'aqidayn means the original parties are undoing their own contract. Fi haqq ghayrihima points to outsiders whose independent legal rights may be affected.

A single transaction can have different legal characterizations for different rights. Do not erase Quduri's explicit distinction by calling iqalah simply “a new sale” in every respect.

9. The right of pre-emption as an example

Suppose a third person is legally entitled, under the relevant rules, to shuf'ah (pre-emption) in a property transaction. The original buyer and seller then agree to iqalah.

For the parties, that agreement unwinds their sale; for the qualifying third-party pre-emptor, it can count as a new sale for purposes of the pre-emption right.

This does not automatically grant pre-emption to every neighbour: standing and procedural conditions belong to a distinct legal chapter.

10. Avoiding an overgeneralization

False generalization: Since iqalah is a sale for third persons, any third person may veto it.

Correct reasoning: An outsider's specific, independently established right may receive the legal treatment of a new sale.

Identify the third person and the right at stake before applying the legal characterization. The shuf'ah discussion in Hanafi commentary provides the classic example.

11. Abu Hanifah and the two disciples

Quduri explicitly attributes his formulation to Abu Hanifah. Hanafi commentaries distinguish the approaches:
1. Abu Hanifah: rescission between parties, fresh sale as to third-party rights.
2. Abu Yusuf: fundamentally a sale, using rescission when sale classification cannot operate.
3. Muhammad: fundamentally rescission, resorting to sale classification where rescission cannot operate.

This comparison belongs to explanatory commentary, not to the quoted lines of Quduri.

12. What if the price is lost?

وهلاك الثمن لا يمنع صحة الإقالة
Translation: The loss of the price does not prevent a valid iqalah.

Thaman (the price) must be distinguished from mabi' (the sold object). Fungible money is repaid by equivalent amount, not necessarily the identical banknotes.

Example:
1. A fan was purchased for Rs 40,000.
2. The seller spent the received notes.
3. The fan survives, and both want iqalah.
4. The spent notes do not block iqalah; return of Rs 40,000 remains due.

13. The price versus the particular goods

The object sold is typically a specific, identified thing, while the cash price is normally dischargeable by a fungible equivalent.

That is why replacement or spending of the particular notes need not eliminate the subject of iqalah: the originally sold item can still be returned.

Do not mistake “loss of the price does not prevent iqalah” for cancellation of the duty to refund the equivalent price.

14. Numerical example: fungible price

Initial sale:
Seller sold a cupboard for Rs 72,000.
Buyer received the cupboard; seller received the money.

Later, the seller no longer has the original notes, but the cupboard remains intact. Both agree to iqalah.

Result: locating the same notes is not required. The seller must return the equivalent Rs 72,000.

15. What if the item is destroyed?

وهلاك المبيع يمنع منها
Translation: The destruction of the sold item prevents iqalah.

Iqalah restores the very identified subject of the first sale. If that item has been wholly destroyed, the original exchange cannot simply be restored.

Example:
1. A buyer purchased an identified bicycle for Rs 30,000.
2. The bicycle was completely destroyed and cannot be returned.
3. That sale cannot be undone through ordinary iqalah of the now-nonexistent item.

This statement does not resolve every other possible liability or independent transaction.

16. Comparing two types of loss

Compare two losses in otherwise similar sales:

Case 1 — original currency is lost: goods survive, so iqalah may proceed with an equivalent refund.

Case 2 — the identified goods are destroyed: the original subject cannot be restored through ordinary iqalah.

The controlling distinction is whether the original sold object still exists, not merely which party lost an asset.

17. Substitution is not ordinary iqalah

A phone sold for Rs 60,000 is completely destroyed. One party proposes replacing it with another phone and calling the first sale cancelled.

The original goods are gone; a replacement object does not automatically turn the proposal into ordinary iqalah of that first item. Any new settlement or exchange must be classified on its own terms.

Not every amicable commercial arrangement is technically iqalah.

18. Partial loss of the goods

فإن هلك بعض المبيع جازت الإقالة في باقيه
Translation: If only part of the goods has been destroyed, iqalah is permissible in the surviving part.

The wording fi baqihi means complete loss of the entire transaction is not the only possibility. Iqalah may apply to the surviving portion of the goods.

Example:
1. Ten identical glasses cost Rs 1,000 in one sale.
2. Three are completely broken; seven survive.
3. Iqalah can concern the seven surviving glasses.

For equal-priced identical units, a teaching illustration allocates Rs 700 to the seven. Allocation among differently valued articles requires further legal analysis.

19. The right question in partial iqalah

Analyze partial iqalah in two stages:
1. Which exact goods survive? They may form the subject of iqalah.
2. Which portion of the original consideration relates to those goods? It depends on the nature and valuation of the items.

If five identical chairs cost Rs 25,000 and one is lost, the simple equal-unit illustration allocates Rs 20,000 to four. Do not apply that division mechanically to unequal items.

20. Damage, defect and destruction are different

Destruction of goods means the identified subject has ceased to exist or is no longer returnable in the relevant sense. Not every scratch, depreciation or malfunction is complete destruction.

1. An article burns up entirely: full loss.
2. Two of ten distinct identical objects break: partial loss.
3. A machine survives but malfunctions: one must consider the law of defect and change; this clause alone does not settle the classification.

21. Five cases to classify

Identify the governing rule in each case:
1. Sale for Rs 40,000 mutually undone at the same price — iqalah.
2. Original Rs 40,000, but refund stipulated at Rs 35,000 — invalid reduction condition.
3. Seller spent the received notes; goods remain — iqalah possible.
4. Sold item completely destroyed — no ordinary iqalah of that item.
5. Eight of ten identical discrete items survive — iqalah may concern those eight.

22. Doctrinal summary of the entire chapter

Iqalah is a mutually agreed undoing of an existing sale. The original price remains the basis, and a condition substituting a lesser or greater amount is not valid within iqalah.

On Abu Hanifah’s approach it is rescission between the parties and a new sale as regards qualifying third-party rights, classically exemplified by pre-emption.

The exact banknotes need not survive, but the original goods matter: full loss blocks ordinary iqalah, while the surviving portion can be covered when loss is partial.

23. Where the book goes next

This chapter finishes the rules for consensually reversing an earlier sale. Quduri then turns to sales that refer to an item's original acquisition cost.

The next chapter is Bab al-Murabahah wa al-Tawliyah:
1. Murabahah: resale at acquisition cost plus disclosed profit.
2. Tawliyah: transfer at that original cost without added profit.

The next lesson will study its full wording and conditions.