Khiyar al-ta'yin (option of specification)

خيار التعيين

Khiyar al-ta'yin (option of specification): lexically singling out from a group; for the Hanafis it is buying one of two or three things with the buyer to choose which he wants; technically the right of a party to specify one of the things on which the contract fell in common, within a set term. ¹ Also called option of distinction (khiyar al-tamyiz); the Malikis call the contract a sale of choice. ² It differs from the option of stipulation, which attaches to one thing, while specification concerns an indefinite group, and from the choice a convert keeps among four wives; in price, selling at two times or two prices for the buyer to choose is forbidden unless the parties separate in the session with the choice made. ²³ Ruling: lawful for the Hanafis, Malikis and some Hanbalis; the Malikis call the contract binding, the option being only in the choice; the Shafiis and most Hanbalis reject it as hazard and forbidden in the report on thunya. ³ Conditions: the stipulation in the contract, a known term, no more than three things, one to be chosen, its attachment to the option of stipulation in the common Hanafi view; it may belong to the buyer or to the seller, not both. ³⁴⁴⁵⁵⁶ Effect: it prevents the transfer of ownership until a choice is made; if one perishes the other is entrusted; if the term passes without choice, the Malikis hold him liable for half each, and loss is treated in detail. ⁶⁷⁷ Term: required by the preferred Hanafi view unless accompanied by the option of stipulation; ends by the same causes as the option of stipulation; passes at death to the heir who chooses, the price paid from the estate. ⁸