Book of Sales with an Option to Rescind (Bayʿ al-Khiyār)
The basic questions to be examined in this chapter are:
- Is stipulating an option permissible or not?
- If it is permissible, what is the length of the option period?
- Must the price be paid on the spot for the option to be valid, or not?
- During the option period, on whom does liability for the merchandise rest?
- Does the option pass to one’s heirs, or not?
- For whom is the option valid and for whom is it not?
- Which deeds count as an exercise of the option just as spoken words do?
Permissibility
The majority of jurists allow a sale with an option, except Sufyān al-Thawrī, Ibn Abī Shubruma, and a group of Ẓāhirīs.
The majority rely on:
• the ḥadīth of Ḥibbān ibn Munqid in which the Prophet, peace and blessings be upon him, said, “You have the option for three days,”
• and the report from Ibn ʿUmar: “The two parties to a sale retain the option to rescind so long as they have not separated—apart from a sale with an option.”
Those who forbid the option argue that it involves gharar (excessive uncertainty) and that the default in sales is binding finality unless a proof from the Qur’an, an authentic Sunnah, or consensus establishes the permissibility of an optional sale. They contend that the ḥadīth of Ḥibbān is either unauthentic or was specific to him because he had complained to the Prophet—peace be upon him—of being cheated in transactions. As for the phrase “apart from a sale with an option” in the ḥadīth of Ibn ʿUmar, they explain it by the wording found in another narration: “when one of the two says to the other, ‘Choose.’”
Length of the Option
Among those who deem the option valid, opinions differ regarding its duration:
• Mālik held that no fixed limit exists in itself; the period is determined by need, which varies with the commodity. He said: about a day or two for a garment; up to a week—five days—for a female slave; and a month or so for a house. In brief, he disallowed a long term that exceeds what is required to inspect the goods.
• Al-Shāfiʿī and Abū Ḥanīfah set the option at three days and do not permit any longer period.
• Aḥmad, Abū Yūsuf, and Muḥammad ibn al-Ḥasan—joined by Dāwūd—allow the option for whatever length the parties stipulate.
The Unrestricted Option
Jurists also differed over an option that is left completely open, with no stated duration:
• Sufyān al-Thawrī, al-Ḥasan ibn Jinnī, and others allow such an open-ended stipulation, in which case the option endures forever.
• Mālik permits an unrestricted option, but holds that the ruler should impose a customary time-limit.
• Abū Ḥanīfah and al-Shāfiʿī deem an unrestricted option impermissible in every circumstance; the sale would therefore be invalid.
Abū Ḥanīfah and al-Shāfiʿī further disagreed if the option actually falls within three days, the very period they recognize for an unrestricted option. Abū