The Various Khiyars

1. Khīyār al-Sharṭ (Conditioned Option)

• Definition: The right of either party (buyer or seller) to rescind the sale within a specified period stipulated during the contract.

Details Regarding the Time Period:

• Imam Abū Ḥanīfa:
  • Restricts the time to three days as this concept contradicts analogical reasoning (qiyās) and is based solely on the ḥadīth.
• Ṣāḥibayn (Imam Abū Yūsuf and Imam Muhammad):
  • Allow the time to exceed three days if the duration is specified in the contract.

Impact on Ownership and Liability:

1. Ownership of the Item:
   • If the seller initiates Khīyār al-Sharṭ, ownership remains with the seller during the option period.
   • If the buyer initiates Khīyār al-Sharṭ, ownership transfers to the buyer but is contingent on the option period.
2. Liability:
   • If the item is destroyed:
     • Ownership with the seller: The seller is liable for the market value of the item.
     • Ownership with the buyer: The buyer is liable for the contractual price of the item.

2. Khīyār al-Ru’yah (Option of Inspection)

• Definition: The right of the buyer to rescind the sale if they had not seen the sold item at the time of the contract and it does not meet their expectations upon inspection.

Nature of Inspection:

• Inspection is not restricted to seeing the item but includes any sensory means through which the buyer gains knowledge of the item:
  • For perfume: Inspection is through smelling.
  • For food: Inspection is through tasting.
  • For fabric: Inspection is through touching.

Key Principles:

1. If the item matches the agreed description or expectation, the sale becomes binding upon inspection.
2. The buyer must exercise Khīyār al-Ru’yah immediately upon inspection; delay implies acceptance.

3. Khīyār al-‘Ayb (Option of Defect)

• Definition: The right of the buyer to rescind the sale if a defect is discovered in the sold item that was present at the time of the contract but not disclosed.

Key Principles:

1. Default Rule:
   • The buyer must return the item to the seller for a full refund.
   • The buyer cannot demand the difference in value caused by the defect.
2. Exception – When the Buyer Cannot Return the Item:
   • If the buyer:
     • Adds a new defect to the item, or
     • Customizes or alters the item in a way that prevents its return,
       they cannot return the item.
   • In such cases, the buyer may seek compensation for the difference in value caused by the original defect.

Definition of Defect:

• A defect is anything that:
  • Reduces the item’s value in the market.
  • Makes the item unfit for its intended purpose.