in my view, between the two cases. Payment without a stipulation, however, is permissible, except where immediate completion is impossible after the option period, as in a forward sale requiring advance payment, the sale of an absent slave, or that of a female slave subject to a waiting period to establish that she is not pregnant. If the sale is completed, it would involve the conversion of a debt into another obligation.
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Just as the seller may not stipulate immediate payment so that he can benefit from it during the option period, the buyer may not stipulate the right to benefit from the item sold during that period. This too involves undue uncertainty: if the sale is not completed, he will have benefited from the item without justification or compensation. He is permitted only such use as is necessary to test it, specifically where testing requires use, such as riding an animal or having a slave perform a minor task of no monetary value.
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An item sold subject to an option remains the seller’s property throughout the option period, whether the option belongs to him, to the buyer, or to both. If it perishes, the loss therefore falls upon the seller, whether it is in his possession or the buyer’s. An exception arises when it is in the buyer’s possession, is of a kind that can be concealed, and has been out of others’ sight: if he claims that it has perished and his statement is the only evidence, his claim is not accepted, and he is liable for the value of the stipulated price. This is because he is suspected of having concealed it and withheld it from its owner, which constitutes acceptance of the price on his part. It has also been related from Mālik that, in a sale subject to an option, liability rests with the buyer if the option belongs to him, and with the seller if the option belongs to him. This is also Ibn Kināna’s position.
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According to Ibn al-Qāsim’s position, an option differs in this respect from a right of selection. If someone purchases one of two garments or one of two slaves, on the understanding that he may take whichever he wishes at an agreed price, and both perish, liability for one rests with the seller and for the other with the buyer, whether or not their loss is established by testimony. The buyer must therefore pay half the price, since it is not known which one he took as a purchase and which he held in trust. The same applies when an option and a right of selection are combined, according to Ibn