Khiyar (the right to annul or confirm a contract)

الخيار

Khiyar is lexically choosing and selecting; to give someone the choice between two things is to leave the choice to him; technically it is a party's right to annul or confirm a contract for a legal cause or by a stipulated term. ¹ It differs from non-binding nature (the power to withdraw by one's own will, a natural feature of some contracts, while option is an added qualifier to a contract that is binding by origin), and from annulment for invalidity, whose effect does not reach back in some kinds according to al-Kasani. ¹² Annulment by option has retroactive effect as if the contract were never concluded, unlike annulment in non-binding contracts which does not touch what came before. ² Option is distinct from invalidity, which is annulled after delivery and is not dropped by a plain waiver as option (except the option of sight) is; and from suspension, which arises from defect of capacity or the rights of another, while option arises after conclusion and fitness for effect. ³ Option is distinct from rescission (iqala), which needs both wills; options are legal (arising by the law, as for defect) or voluntary (from the parties' will, as the option of stipulation, of price payment or of choice); by aim they are for deliberation (benefit) or for deficiency (avoidance of harm), as al-Ghazali and al-Dardir teach. ⁴⁵ Maliki classes: options of deliberation (session, return, acceptance, stipulation); of deficiency (defect, eviction, division of the deal, partial loss); of ignorance (sight, quantity, disclosure of the matter, specification); of deception (fraud, bidding up, meeting caravans); of unfair price (the uninformed seller, the minor); of trust (sale at cost-plus, transfer, partnership, stock); of breach (delay); and of impossibility of delivery (payment, failure to deliver, quick corruption, bankruptcy). ⁵ The wisdom of option: in legal options, to make good the shortfall when a condition of binding fails, to avert harm and to purify consent; in voluntary ones, deliberation by counsel or testing; the aim may be both; the Malikis force the seller to hand over the goods where the purpose is testing and receipt is stipulated; the term is set by need, while al-Shafii and Abu Hanifa allow no option beyond three days. ⁶⁷ Option removes binding: the option contract differs from non-binding ones such as loan; the option of stipulation prevents the effect from starting, that of sight prevents completion, that of defect prevents binding; the Hanafis hold rescission by sight and stipulation effective for all, while for defect they separate before and after receipt. ⁷⁸ Options on quantity, on the eviction of a thing, on delay, on quick corruption and on bankruptcy are referred to sale, eviction, stipulation or payment. ⁸