If, in such a contract, the sale becomes binding in both of its alternatives, there is no dispute that it is impermissible. When, however, the sale is not yet obligatory in either alternative, Mālik considers it lawful, whereas Abū Ḥanīfah and al-Shāfiʿī forbid it, on the grounds that the parties separate without a definite price. Mālik treats the matter as one of contractual option (khiyār): so long as the buyer retains an option, no regret can arise that would prompt him to replace one of the two prices with the other—a consideration that, for Mālik, removes the objection.

Accordingly, al-Shāfiʿī and Abū Ḥanīfah invalidate this third configuration because the price is unknown; in their view it is among the sales tainted by excessive gharar that the Law forbids. Mālik, by contrast, prohibits it in order to block the means leading to ribā, for the party holding the option might first elect to complete the contract at either the deferred or the immediate price and then secretly change his mind. In effect, he would have exchanged one price for the other, thereby entering an exchange of money for money on credit—or on credit with excess. All of this applies when the consideration is cash; if the consideration is food, a further violation enters, namely selling food for food with disparity.

If a person says, “I will buy this garment from you for such-and-such in cash on condition that you sell it back to me on credit,” the jurists unanimously declare it impermissible, because it is a form of ʿīnah (a man selling what he does not possess) and also involves an unknown price.

Again, if one says, “I sell you one of these two garments for a dinar,” the sale of whichever garment he chooses becoming binding, and they part company before the choice is made—then, when the two garments are of different kinds such that one could legitimately be delivered in place of the other, Mālik and al-Shāfiʿī agree that the sale is invalid. ʿAbd al-ʿAzīz ibn Abī Salamah, however, held it permissible. The reason for prohibition is ignorance and gharar. If the two garments are of the same kind, Mālik permits the sale, whereas Abū Ḥanīfah and al-Shāfiʿī do not. Mālik’s permission rests on his general allowance of an option after the contract where the goods are homogeneous, judging the gharar involved to be slight. Those who forbid it deem the gharar excessive, for the parties have separated while the object of sale remained indeterminate.

In summary, the jurists concur that a high degree of gharar in sales is impermissible, while a minor degree is tolerated. They differ over certain cases: some attach them to the excessive gharar, others to the slight and excusable gharar, because those cases lie midway between the two.

If, adopting Mālik’s view, we say the sale is valid, then suppose the buyer has taken possession of the two garments pending his choice, and one of them perishes or becomes defective—who bears the loss? One opinion is that the loss is shared between the parties; another makes the buyer fully liable unless proof of destruction is produced; a third view distinguishes between garments and goods commonly subject to damage, on the one hand, and items not normally prone to it, like a slave, on the other: liability is imposed for what usually perishes, not for what rarely does.

As for whether the buyer is obliged to accept the remaining item, some say he must, others that he need not; the details belong to the broader rulings on sales.

It should be understood that, according to the jurists of the various regions, all of these issues fall under the heading of gharar. In Mālik’s view, however, some belong to the category of blocking the avenues to ribā, while others are genuinely cases of gharar.