binding, such as partnership and agency. Likewise, they unanimously hold that it does not apply to binding contracts in which no remuneration is sought, such as marriage and khulʿ divorce.
Scholarly disagreement:
The great majority of scholars from the Companions, the Successors, and the leading jurists affirm the validity of the session option (khiyār al-majlis).
• Among the Companions: ʿAlī, Ibn ʿAbbās, Abū Hurayrah, and Abū Barzah.
• Among the Successors: Saʿīd ibn al-Musayyib, ʿAṭāʾ, al-Ḥasan, Ṭāwūs, al-Shaʿbī, and al-Zuhrī.
• Among the later imams: al-Layth, al-Awzāʿī, Sufyān ibn ʿUyaynah, al-Shāfiʿī, Aḥmad, Isḥāq, Abū Thawr, al-Bukhārī, and many other exacting scholars.
Their proof is the abundance of clear, sound hadiths on the matter.
Imams Abū Ḥanīfah and Mālik, on the other hand, deny that the option exists. They excused themselves from acting upon the hadiths with several weak arguments that the majority have refuted and shown to be unsound.
Among their pretexts:
- They said that the hadiths run counter to the practice of the people of Medina and that this practice is a proof.
Response: Many residents of Medina do in fact recognize the option, including the Companions just mentioned and, among the Successors, Saʿīd ibn al-Musayyib.
Ibn ʿAbd al-Barr said: “It is invalid to claim a consensus of the people of Medina on this question, for Saʿīd ibn al-Musayyib and Ibn Shihāb—two of the foremost jurists of Medina—are both reported to have acted upon it. How, then, can anyone allege consensus? Such a claim is untenable.”
I say: Even if they had been unanimous, their agreement would not constitute definitive proof, for only the consensus of the entire Muslim community—endowed with protection from error—carries that weight.
Ibn Daqīq al-ʿĪd said: “The correct view is that the consensus of the people of Medina is not a binding proof,” and he expressed this point with admirable clarity.