Takhyir (choice left to the obligated person)

Takhyir is leaving to the obligated person's choice one of several options fixed by the law. Its rules recur across worship, marriage, zakat, criminal law and property. ^{1 2}

In Arabic, khayyarahu means to leave a person the choice between two things. The jurists' sense is handing the matter to the choice of the obligated person among options the law fixes, which he may select under known conditions. ¹ Takhyir differs from ibaha, which is permission to do an act at the doer's will within the permission, and from tafwid, such as a husband's grant to his wife of the choice to divorce herself or stay married. The usulis treat takhyir in permitted acts, in recommended and obligatory acts, in the prohibition given as a choice, and in dispensation; the usul appendix covers these. ²

Jurists agree that a worshipper may choose within the broad window of prayer, performing it at its start, middle or end, without sin. Most hold that prayer is obligatory from the start of its time in a broad sense, so one who delays it while intending to pray and dies within the time is not sinful, unless he expected death and did not pray. The Hanafis hold that the obligation falls on an undetermined part of the time, fixed by beginning the prayer, and that one who leaves it fixed too late is sinful. The proof is the hadith of Gabriel leading the Prophet ﷺ in prayer at two times, and the hadith of Buraida: "the time of your prayer is between what you have seen". ^{2 4}

For cattle that reach 120, jurists agree that the collector chooses between three musinnat (older females) or four tabi'at (two-year-old calves); the choice belongs to the collector according to the Malikis, Shafi'is and Hanbalis, and to the owner according to the Hanafis. ^{4 5} For camels that reach 121, the Malikis require two hiqqas or three bint labun, with choice left to the collector; the Shafi'is and Hanbalis require three bint labun without choice; the Hanafis begin the schedule anew. ⁵ Where different kinds of one genus are combined to complete the nisab, the Malikis take from the majority, the Shafi'is have three views, and the Hanbalis take from either kind in proportion to the value of the two herds. Where a nisab has two obligations, as two hundred camels do (four hiqqas or five bint labun), the owner chooses; the old view of al-Shafi'i required four hiqqas, the hadith of Ibn Umar being the proof. ^{5 6}

The jurists agree that a pilgrim in ihram who shaves hair, trims nails, perfumes himself or wears stitched clothing owes a ransom, chosen among three: a sheep, feeding six poor people, or fasting three days. The proof is the verse of surah al-Baqara (2:196) and the hadith of Ka'b ibn Ujra. ⁶ The Hanafis limit the choice to one excused by illness; one not excused must sacrifice a sheep and has no choice. The majority do not distinguish. ⁷

The killer of game in the sacred precinct chooses among three: to give an animal of the like of what he killed to the poor of the sanctuary; to value the game in money and give food worth that value in alms; or to fast one day for each mudd of food. The Malikis value the game in food first. The proof is the verse of surah al-Ma'ida (5:95). ⁷

The Shafi'is, Hanbalis, Malikis and Muhammad ibn al-Hasan hold that a man who converts with more than four wives, or two sisters, chooses which four (or fewer) to keep, and the marriages of the others are ended. The proofs are the hadith of Qays ibn al-Harith and the hadith of Ghaylan ibn Salama. Abu Hanifa and Abu Yusuf hold that the marriages are void if contracted in one contract; if the contracts were in order, the later one is void. ^{7 8} The choice is made by an explicit word, by divorcing some, or by intercourse in the view of the non-Shafi'is. If he will not choose, he is compelled by detention or discretionary beating; the judge may not choose for him, since the choice is his right, and he owes maintenance to all of them during the period. ⁸

The Shafi'is and Hanbalis hold that a child of a separated couple chooses between father and mother, and joins the one he chooses. For the Hanbalis a boy chooses at seven, when he is sound of mind; for the Shafi'is at discernment. A Hanbali girl stays with her father until she reaches the age of marriage. ^{8 9} The proof is the hadith of Abu Hurayra (may God be pleased with him), in which the Prophet told a boy to take the hand of whichever parent he chose, and he took his mother's. ⁹ The Hanafis and Malikis deny a child any choice, and give the custody to the mother; the Malikis keep a girl with her mother until her husband consummates the marriage, and the Hanafis until she menstruates. Hadiths of a child's choice are read as an answer to the Prophet's prayer for guidance, as in the case of Rafi' ibn Sinan. ^{10 11}

The Shafi'is, Malikis and Hanbalis agree that the imam chooses among five things for prisoners of war: enslaving them, killing them, taking the poll-tax from them, ransom by money or by exchange for Muslim prisoners, or pardon by release. The Hanafis exclude the last two, pardon and ransom for money in the accepted view. Women and children have no choice and are enslaved. ^{11 12} The choice is bounded by the greater interest of the Muslims. If the imam hesitates, the Hanbalis hold that killing is preferable, and the Shafi'is hold him until he sees the better course. Once the imam has chosen enslavement or ransom, he may not reverse it; he may reverse killing. ^{12 13}

The Shafi'is and Hanbalis hold that the penalty for brigandage varies with the crime, as the verse of surah al-Ma'ida (5:33) states. The Malikis hold that the imam chooses among four: killing without crucifixion, crucifixion with killing, exile and imprisonment, or cutting the right hand and left foot. For women, crucifixion and exile do not apply. The choice rests on the interest of the Muslims. ¹³

The Hanafis and Malikis hold that the finder, after announcing the find, chooses between owning it and using it, giving it in alms, or keeping it in trust until the owner comes. The Hanbalis and, in one view, the Shafi'is hold that he owns it outright once the announcement is complete. In the sounder Shafi'i view, and an opinion of Abu al-Khattab, he does not own it until he chooses ownership by express words or intention. ^{13 14} Those who hold ownership cite the hadith of Zayd ibn Khalid al-Juhani (may God be pleased with him) on the lost item. Those who hold choice cite the Prophet's words: "if its owner comes, well; otherwise it is yours". ¹⁴

All agree that expiation for an oath is a choice among four: feeding ten poor people, clothing them, freeing a slave, or, for one who cannot do any of these, fasting three days. The proof is the verse of surah al-Ma'ida (5:89). The point of the choice is that the one who expiates may choose any option, and change as he sees fit. This differs from the imam's choice over brigands and captives, which is bounded by interest. ^{14 15}

The jurists agree that the victim's heir chooses among three things for a killing: retaliation, pardon in return for blood-money or part of it, or a settlement for payment, or pardon without payment. The proofs are the verses of surah al-Baqara (2:178) and surah al-Ma'ida (5:45), and the hadith of Abu Hurayra that the heir chooses between two things, retaliation or the blood-money. ^{14 15} The Hanafis and Malikis hold that the heir may take blood-money only with the killer's consent; the sounder Shafi'i view and the Hanbali school hold that pardon of retaliation brings the blood-money due without consent. ^{15 3} The detail belongs to the entries on retaliation and blood-money. ³