As evidence for the session-option (khiyār al-majlis) they cite the report transmitted by Mālik, from Nāfiʿ, from Ibn ʿUmar, that the Messenger of Allah—may Allah bless him and grant him peace—said:
“The two parties to a sale each retains the right of withdrawal so long as they have not separated—except in a sale where an explicit option has been stipulated.”
In some narrations of the same ḥadīth it also reads:
“—unless one of the two says to the other, ‘Choose.’”
All scholars agree that the chain of this report is among the soundest and most reliable chains in existence; Abū Muḥammad even asserted that a chain of this strength confers certainty, despite being an aḥād report.
Those who dissent, however, struggled to find persuasive proof for setting the ḥadīth aside. The ground on which Imām Mālik—may Allah have mercy on him—rested his non-implementation of it is that he found no living practice of the people of Madinah in accordance with it. In addition, he felt it was countered by the interrupted report he had received from Ibn Masʿūd, who said:
“Whenever two people transact, the statement is the seller’s—otherwise they return the goods to each other.”
He appears to have taken this sentence in its full generality, applying it both during and after the session. Had physical presence in the same session been a condition for a contract’s formation, there would have been no need to spell out the ruling when disagreement arose while still together, for the sale would not yet have come into effect and therefore would not have become binding until they parted. Yet this report from Ibn Masʿūd is mursal and cannot be set against the first ḥadīth—especially since only someone who imagines that it is unrestricted would place it in conflict with the authentic report. Moreover, to the best of my knowledge no one has produced this ḥadīth with an uninterrupted chain. This, then, is the basis upon which Mālik—may Allah have mercy on him—refrained from acting upon the ḥadīth of khiyār al-majlis.
Mālik’s followers relied on two further lines of argument: explicit textual evidence and analogy (qiyās).
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Among the clearest textual proofs they cite is the Almighty’s statement:
“O you who believe, fulfil your contracts” (al-Māʾidah 5:1).
A contract, they argue, is constituted by offer and acceptance, and the Qur’ānic command is obligatory. Recognising a session-option would require violating that obligation, for it allows either party to rescind the sale after a fully concluded agreement—so long as they have not yet dispersed.
- By analogy they reason: this is a contract of exchange, and the session-option has no effect in any of the other exchange contracts—marriage, emancipation through kitābah, khulʿ, pledges, or a settlement for intentional homicide. Hence it should have no effect here either.
When it was put to them that the explicit texts they invoke are rendered specific by the reported ḥadīth, leaving only analogy to stand against it—thereby obliging them to give precedence to qiyās over transmitted evidence, a position generally abandoned among Mālikīs (though a few reports attribute such precedence to Mālik, akin to Abū Ḥanīfah’s view)—they replied that this is not a case of rejecting a ḥadīth in favour of analogy, nor of preferring analogy, but rather of interpreting the ḥadīth and diverting it from its apparent meaning.
They added: interpreting an apparent text by means of analogy is a course unanimously recognised by the scholars of legal theory.