Abī Zayd. This is how Ibn Lubāba interpreted the statement of Mālik—may Allah Most High have mercy on him—in al-Muwattaʾ, and that of Ibn Nāfiʿ in Ibn Muzayyin’s commentary. In my view, however, their statements more evidently mean that the person to whom the seller assigned the option may reject or approve the sale, and that the buyer is entitled to hold the seller to that decision. Abū Ishāq al-Tūnisī adopted the view already reported from him: that this is equivalent to agency.
They did not differ in their interpretation of the passage in al-Mudawwana concerning a buyer who makes this stipulation. In my view, the apparent meaning of the passages in al-Mudawwana is that they represent differing opinions concerning the seller, but not the buyer: in one instance, he treats the seller’s stipulation like the buyer’s, while in another he distinguishes between them. It has also been said that the passages in al-Mudawwana do not represent differing opinions, but rather reflect a distinction between the seller and the buyer. Others have said that they represent differing opinions applicable to both seller and buyer.
As for consultation, they agree that the party who stipulates it may dispense with it, and that this right belongs to whichever contracting party stipulated it, not to the other. The exception is what Abū Ishāq al-Tūnisī reported: that the apparent meaning of the passage in the book of Muhammad ibn al-Mawwāz—may Allah Most High have mercy on him—is that consultation is like an option, in that if the person consulted is first to recommend a course of action, it becomes binding. This is far-fetched; examine his statement in the original work. As for Abū Ishāq al-Tūnisī’s report from Ibn Nāfiʿ that consultation is exactly like an option, in that the person whose consultation was stipulated may accept or reject the sale, this report is inaccurate. He was speaking only of consultation expressly coupled with an option, which is equivalent to an option alone. Examine this in Ibn Muzayyin’s commentary.
Section
The seller may not stipulate immediate payment during the option period. If he does, the sale is rescinded on that account, because the money paid may become either the price, if the sale is completed, or a loan, if it is not. If this is done, the sale must be rescinded in all cases. It is not like a sale combined with a loan, where, according to one of the two opinions, the sale becomes valid if the party who stipulated the loan chooses to waive it.
This is the apparent meaning of al-Mudawwana, because it mentions the value in the case of someone who makes an invalid purchase with an option, owing to the stipulation of immediate payment, and then discovers a defect. It does not say, “the lesser of the value or the price.” In Ibn Sahnūn’s book, however, it is treated like a sale combined with a loan, and there is no distinction