Khiyar kashf al-hal (option upon disclosure of the quantity)

Kashf in language is disclosure, the lifting of a thing from what veils and covers it, and takashshuf is becoming apparent; the technical definition is drawn from this meaning, so the option of disclosure is the right of rescission for one to whom the amount of the sold thing proves other than he supposed. The Hanafis name it with several names from the same root: kashf al-hal, inkishaf al-hal and takashshuf; its intent appears from its field, for it runs in the personal measures the two parties sometimes resort to instead of the customary measures, whether the measure is of the instruments of volume or of weight, and its current example is a person selling a thing of what is sold by measure or weight, not using for its estimation the customary vessels or scales but selling it by a particular vessel of unknown capacity such as a box or a bag, or by the weight of a particular stone — the sale is valid under special conditions and carries the buyer's right of option, the sale being non-binding, and its validity is disputed in the Hanafi books. ¹ The Hanafis take this option in a transmission and list it among the options named in their school; the Shafiis affirm it too though under another name and sometimes unnamed, expressing it instead, as Ibn Hajar states that the words "I sold you the fill of this jug or the houseful of this heap, or the weight of this pebble of this gold" are valid, because taking from the determinate is possible before it perishes and knowing the determinate amount is not required, unlike saying "in my liability is such-and-such of it"; the Malikis forbid it and count it among the kinds of forbidden gharar sale, the prohibition being the transmission of al-Hasan ibn Ziyad from Abu Hanifa. ¹ The ground of the view permitting it is that the ignorance present in this contract does not lead to dispute because its delivery is made prompt in the session, which is one of the special conditions, and only dispute-breeding ignorance bars validity; Ibn al-Humam said the principle requires that the option stand whenever he measured or weighed for the buyer, as in buying by the weight of this stone in gold, and the fatwa books state the option stands when he learns it by weighing; he did not stop at what he transmitted but brought a parallel of the rule, saying the nearest thing to it is Abu Hanifa's view on selling a heap at a dirham the qafiz: if it is measured in the session until the amount is known the sale is valid and the option is established for the buyer as though he had seen it without having seen it at the time of the sale, though the supposition is that he saw the heap before measuring and pointing was made to it; and as for the view of prohibition, its ground is that a sale of measurables and weighables is either by estimate, in which case the object of the contract is what is pointed at, or by naming the amount, in which case the object is the named amount, and neither is found here: it is not an estimate nor was a determinate amount named, since the measure was not known. ² Required for the validity of the said sale entailing the option of disclosure is that the unknown vessel or scale remain as it was, for if they perish before delivery the sale corrupts because the amount of what he sold cannot be known; and that delivery of the goods be prompt, that is, in the session of the contract — Ibn al-Humam says every wording states the conditioning of the sale's validity on promptness, among them al-Sarakhsi's wording that buying by this vessel hand to hand is unobjectionable, for in a determinate thing sale by estimate is allowed and with an unknown measure a fortiori, delivery being right after the sale; and it is required in measuring only that the personal measure not admit shrinkage, neither collapsing nor contracting, such as being of wood or iron, while if it is like the wicker basket or the sack it does not serve. ² Of this kind is selling the fill of a particular waterskin or large skin: from Abu Hanifa that it is not allowed because the water is not with him nor is the skin's capacity known, though he unqualifiedly allowed it for a specified skin with the town's customary skins among most water-carriers being the measure; from Abu Yusuf that if it is filled and they then agree it is allowed; and Ibn al-Humam said the analogical rule is beyond doubt Abu Hanifa's transmission, while the juristic preference established by practice implies permission after the skin's kind is named when it is not specified, the disparity beyond that being slight and wasted in water. ³