Problem # 4 The growth in the subject (of sale) and its benefits during the said period shall belong to the buyer, as he shall have the recourse against the seller if the subject is (damaged or) lost. The right of option subsists in the event of the loss of the subject if it is stipulated that he shall have the right of option and the power to rescind the contract. Subsequent to the cancellation of the contract, the seller shall have the right to demand an equivalent or price of the subject. If it is stipulated that in the event of cancellation of the contract the subject itself shall be returned, the right of option shall drop. If it is stipulated that the subject itself shall be returned (in case of cancellation of the contract), the buyer shall have no right to bring any transferring change or loss of the subject before the expiry of the stipulated time. It shall not be far from both, (i.e. bringing change or loss) being permissible if what is stipulated is the power to rescind the contract.

Problem # 5 The price stipulated to be returned is entirely the liability of the seller, as when he owes one thousand Dirhams to Zayd, and sells his house for what he owes to him, and stipulates the option conditional to the return of the price, its return shall be by paying what is owed by him, although he is absolved of his liability by stipulating it to be the price (of the subject).

Problem # 6 If the seller has not taken the possession of the price at all, irrespective of the whole owed by the buyer or the actual subject in his possession, whether he has the option and the right to rescind the contract before the expiry of the stipulated period or not? There are two alternatives, the former not being devoid of preference.

If he has taken its price, and the price is absolute, then apparently he shall not be required to return it in substance; rather it shall be sufficient to return it in some other kind that may be deemed equivalent to that entire price, except when it has been stipulated to return the price in its substance. If the price is personal in substance, the return shall not be deemed to have taken place, except by its return in substance. If it is not possible to return it in substance or its kind due to having perished, the option shall drop, except when it has been explicitly stipulated that what is deemed generally as its substitute may be returned, if it is not possible to return it in substance. If the price is of the category that is usually utilized by spending it, not by keeping it, as cash money, it may be said that what comes to the mind in general may be deemed usually to include its substitute, as long as it is not stipulated otherwise.

Problem # 7 As the return of the price takes place by its reaching the buyer, so also it takes place by its reaching the buyer’s general agent or his special agent for that purpose, or by its reaching his Wali, like the judge, if he becomes a lunatic or is away; rather, it would take place even it reaches the morally sound believers, in case they enjoy his Wilãyat. This rule applies in case the option related to the return of the price or its return to the buyer, and had been in general terms. If, however, there was the condition of its return to the buyer personally, it cannot be paid to anyone else.

Problem # 8 If the guardian buys something through an optional sale, and the interdiction of the principal is removed before the expiry of the stipulated period of option, and the seller returns the price (to him), then apparently the return of the price shall be deemed to have taken place by its reaching the principal, and the seller thereby be entitled to exercise option. The return of the price shall not be sufficient if it is paid to the guardian after he is deprived of his right of guardianship. If one of the two guardians, like the father, buys something, then will the return of the price be valid if it is returned to the other guardian, like the paternal grandfather? It is not far from being valid in case it was not possible to return the price to the father in the said example. If a judge buys something as a guardian, then, according to the stronger opinion, the return of the price to another shall not be sufficient if it was possible to return it to the former. In case, it was not possible to return it to the former, then it can be returned to the other judge. This rule is applicable to the case where it has not been specifically mentioned that the price is to be returned to the buyer personally, as mentioned in the previous Problem, otherwise, it cannot be paid to anyone else.

Problem # 9 If the seller dies, like all similar cases, the right of option shall be transferred to his heirs, so that they shall be entitled to return the price or rescind the contract for sale. The object of sale shall be returned to them according to the Laws of Inheritance, as the price returned is also to be divided among them according to their respective shares. If the buyer dies, then apparently it shall be permissible to rescind the contract for sale by returning the price to his heirs. Of course, if it has been stipulated specifically that the price is to be returned to the buyer personally and directly to him, then apparently his heirs shall not be entitled to stand in his place, and so the right of option shall drop with the death of the buyer.

Problem # 10 As it is permissible for the seller to stipulate the right of option for returning the price, similarly the buyer may also be entitled to stipulate similar option of returning the object for which price has been paid. In such case, apparently the general stipulation shall require the return of the object itself, and it shall not be deemed to take place by returning its substitute, even if the object has perished, except when the return has been specified in a way that it also includes a substitute. It is permissible for both the seller and buyer to stipulate the right of option by returning what has been transferred to them.

Fourth — Option of Deception (Khiyãr-i Ghabn)

The Option of Deception takes place when a person sells a thing on a price lower than its proper price or the buyer buys it on a price higher than its proper price due to ignorance of its proper price. In such case, the party deceived shall have the right of option to rescind the contract. The excess or deficit shall be judged in consideration of the stipulation appended to the contract. If a person sells something worth one hundred Dinars for far less than that, but with the right of option for the seller, it shall not fall under Deception, because a thing that is sold with the right of option for the seller has a lesser value than a thing that is sold with a binding contract (without an option). Similar is the case with other stipulations. It is a condition in a Deception that the difference in the price should be so much that it is not dispensed with usually in such transactions. Its determination depends on the usual practice. The difference differs with different transactions. Sometimes the difference is half of one-tenth or one-tenth, which is generally dispensed with, and so it is not considered a Deception, while sometimes the difference of one-tenth of one-tenth is not dispensed with. There is no fixed criterion for it, and it depends on the usual practice.

Problem # 1 A defrauded person is not entitled to demand the difference of price from the fraudulent person; rather, he shall have the option either to rescind the contract or agree with the specified price, in the same way that his option is not dropped by the payment of the difference by the defrauding party. Of course, there is no objection in case of their mutual agreement.

Problem # 2 The option is established from the time of the conclusion of the contract (of sale) and not from the time it is discovered. If the defrauded party rescinds the contract, while the deception has already taken place, the contract shall automatically be cancelled.

Problem # 3 If a person comes to know of a deception, but does not expedite cancellation of the contract, then if it was due to his ignorance about the option, there shall be no objection in the subsistence of the contract. If a person has knowledge about the option, and decides to cancel the contract due to being unwilling with the sale on that price, but delays the cancellation due to some special consideration, then apparently the contract shall subsist. Of course, .he is not allowed to delay in a way that it may lead to harm or suspension of some work by the defrauding person. Rather, if he decides not to cancel the contract, but later changes his intention (and decides to cancel it), the subsistence of the contract shall not be devoid of force.

Problem # 4 The criterion in a deception is the price at the time of the conclusion of the contract. If there is some increase in it subsequently, the right of option shall not drop, even if it happens before the defrauded person comes to know of the deficit in the price at the time of the conclusion of the contract. If the price is decreased after the conclusion of the contract, the right of option shall not be established.

Problem # 5 This option drops in the following cases.

First If during the contract the cancellation of the contract is stipulated. In such case the deception shall be confined to the degree intended in the stipulation and that is implied by the wordings of the contract. So if it is stipulated that a degree may drop from the deception, like one-tenth, and later it transpires to be one-fifth, the right of option shall not drop. Rather if its cancellation is stipulated, even if the deception is immoderate or more, the right of option shall not drop, except when it is proportionate to what is likely in such transactions and not more. If suppose a person buys something for hundred, while it is not likely to be worth ten or twenty, while it is likely to be immoderate up to fifty or more immoderate up to thirty, the right of option shall not drop in case of the stipulation mentioned, while it is worth ten or twenty. All this will happen in case the cancellation of the option is stipulated when it comes from ten in a way of being confined. The other case shall be dealt with under the Second.

Second. When the option is cancelled after the contract, even if before the deception is discovered when it is cancelled with the supposition that it shall be established. This shall also be confined to the degree of the deception as contained in the wordings of the contract. If it is dropped to a special degree, like ten, and later it transpires that the deception was of a greater degree, it shall not drop, if the cancellation is by way of being confined, so that the option may drop if it comes, for example, from ten in a general way conforming to the external according to its suitable circumstances. If the option that has been materialized in the contract is dropped under the impression that it is a deception of ten degrees, then apparently it shall drop, regardless whether it is defined by the supposed definition or not. If it is said that the option materialized in the contract that comes from ten, and so it is repugnant to the definition, its option is dropped, according to the stronger opinion. It is better to have been dropped under the impression that it comes from that. The same is the case when it is stipulated to be dropped by a degree, or when it is immoderate or more. The same rule shall apply to the case where a person has entered into a compromise on his option that has been declared invalid if it was by way of being confined to a degree, and later it transpires to be of a greater degree, besides the other two cases. As it is permissible to drop the option after the contract gratuitously, it is also allowed to make a t on it against some payment. So if there is knowledge about the degree of deception, there shall be no objection. In case of ignorance a compromise shall be valid with the specification of the general degrees, so that it is compromised on the option for deception occurring in this transaction of whatever degree it might be.

Third If, after the knowledge about the deception, the person brings some changes in the thing transferred to him in a way that is understood by sane persons to mean making the contract binding and dropping the option, such as the change effected by its destruction, or by what hampers its return, or giving it out of his ownership, as through a binding sale, or, rather, otherwise, or the type of changes already mentioned under the Option of Animals (or Beasts of Burden). But as regards the minor changes, such as inconsiderable riding, or feeding it with fodder, or the like, that does not signify willingness (to drop the option), the option shall not thereby be dropped, in the same way as the changes effected before the discovery of the deception do not lead to the suspension of the option, in the same way as the changes made by the defrauding person in the thing transferred to him absolutely does not deprive him of the right of option.

Problem # 6 If the defrauded seller rescinds the contract of sale, then if the object of sale exists with the buyer in its original condition, the latter shall return it to the former. If it has perished or has been destroyed, the seller shall have the recourse to the buyer for its substitute or its price. If some damage has been done to it, regardless whether it has been the result of his own act, or otherwise an Act of God, or the like, the seller shall receive it along with its indemnity. If it has gone out of his ownership through an endowment or some binding transaction, then apparently it shall be treated as one destroyed, and so the seller shall have the recourse to the buyer for its substitute or its price.

If it has been transferred through an unbinding transaction like a sale with the right of option or gift (Hibah), then there is hesitation in the permissibility of the compulsion to rescind the contract and return the object itself. If the object itself has been returned to the buyer through revocation of the contract by either of the two parties, or a fresh contractor through revocation before the recourse by the seller for its substitute, it is not far from his being under compulsion to return the object itself, even if the previous transfer had been binding.

If its usufruct has been transferred to another person through a binding contract as a contract of lease, it shall be an impediment in revocation of the contract, as, after the revocation, the contract of lease shall remain intact, and the object shall be returned to person revoking the contract stripped of the usufruct, and he shall be entitled to all benefits enjoyed by the lessee, if any. There is a strong justification for the permissibility of his recourse to the buyer for the proper rent proportionate to the remaining period of lease. As also it is likely for him to have recourse to him for the damage caused to the object due to his being deprived of the benefit during that period. The price of the object shall, therefore, be assessed in consideration of its being an object having benefit during that period once and after being deprived of the benefit another time, and the seller shall receive the object itself along with the difference between the two prices. Apparently there is no difference between both the cases.

Problem # 7 After the revocation of the contract by the defrauded seller if the object of sale exists with the buyer, but he has effected some change in it thereby bringing some alteration   in it, either in the form of a deficiency or an excess or a mixture. If it is the form of a deficiency, the seller shall receive it and have recourse to him for indemnity, as already mentioned. If it were by way of excess, then either it is a mere description, as grinding the wheat into flour, bleaching the cloth, molding the silver, or it is a description tarnishing the object itself, as dying when it is usually considered to be something separate, or a mere separate object like plantation, tilling or building. In the first case, if the excess has nothing to do with the increase in its price, the seller shall have recourse to have the object itself and he shall be under no other obligation, as the buyer shall also not be under any liability.

If it has something to do with the increase in the price, the seller shall have recourse to have the object itself. In this case there are different alternatives, as, due to the increase in the price belonging to the buyer, the seller may receive the object itself and pay the excess in its price, or may share with the buyer in the price, so that the object may be sold and both may share the sale proceeds in their due proportion, or may share the object itself in their due proportion to the excess, or the object may belong to the seller and the buyer may receive the remuneration for his labor, or nothing may go to him at all, the stronger alternative is the second. The seller shall not be compelled for sale; rather, he shall be entitled to receive the object and pay what belongs to the buyer proportionately. The same is the likelihood even in the second alternative. In the third alternative, the seller shall have recourse to receive the object, while the plants or the like shall belong to the buyer, and the seller shall not be entitled to compel the buyer to uproot the plants or raze the building to the ground, or to indemnify, or compel him to keep it intact even gratis, as also the buyer shall not be entitled to keep it intact gratis and without any remuneration.

The buyer shall have to keep it intact against payment of remuneration, or uproot the plants or trees and level the land and repair the damage caused to the land, and the seller shall be entitled to compel him to do either of the two. If it is possible to plant the uprooted tree in a way that nothing shall happen to it except the change of the place, then the seller shall be entitled to compel the buyer to do so. Apparently there is no difference in the application of the rule between farming or other things.

If, however, the alteration has taken place due to mixture, then if it has been mixed in a way that it is not distinguishable, then it shall be treated as something non-existing, and so the seller shall have recourse to get its substitute or its price without there being any difference between a thing which has amortized and is considered to have perished, as when the rose-water is mixed with oil, or, in the prevalent custom, both the things, (when mixed), turn into something else. Caution must not be given up by reaching a compromise or mutual agreement in cases other than these two cases, though in case of mixture when the things mixed are not distinguishable, the application of the rule relating to a perished object is not devoid of force.

If the thing mixed belongs to the same category, then the mixture shall be shared in proportion to the respective quantity (of both the things mixed).

If the alloy is of an inferior or superior quality, then in the former case, the seller shall receive the indemnity and in the latter he shall pay for the surplus in its price.

It is, however, more cautious to reach a compromise particularly in the second case.

Problem # 8 If a person sells or buys two things in a single transaction, having been defrauded in one to the exclusion of the other, he shall not be entitled to separate them while revoking the contract; rather, he shall have either to revoke the entire contract of sale, or be willing to abide by it entirely.

Fifth — Option of Delay

The Option of Delay takes place when a person sells a thing but neither receives the whole price nor delivers the thing to the buyer, while no stipulation has been made regarding the delivery of either of the two, (namely, the price and the thing sold). In such case, the contract shall remain binding until three days.

If the buyer comes with the price, he shall be more entitled to take the delivery of the commodity. Otherwise, the seller shall be entitled to revoke the bargain.

If, in the meantime, the commodity perishes (or is destroyed), the loss shall be borne by the seller, while the receipt of part of the price by the seller is to be treated as if not receiving the price at all.

Problem # 1 Apparently this option is not to be made immediately. So if it is delayed for three days, it shall not drop, except in case of any of the causes that lead to its suspension.

Problem # 2 This option is dropped by stipulation made in the contract of sale, or by dropping it after three days. There is, however, hesitation in its suspension before three days. The stronger opinion in favour of its non-suspension is stronger, as also the opinion in favour of its non-suspension is stronger in case the buyer pays the price even after three days but before its revocation by the seller. The option also drops if the buyer takes the money by way of settlement, not in any other way. As regards the question whether the option shall drop on the demand of the price by the seller, there are two opinions, the one according to the traditional authority being in favour of its non-suspension.

Problem # 3 By the three days is meant the light of the day, and it does not include the nights excluding the intervening two nights. So if the contract of sale is concluded in the first part of the day, the end of the three days shall be the sunset on the third day. Of course, if it is concluded at night, the first night or part thereof shall be included in the period. Apparently, piecing together is sufficient. If the contract of sale is concluded in the first part of after noon, the beginning of the option shall be counted from the after noon of the fourth day. And so on.

Problem # 4 This option is not applicable to other forms of transactions except to a contract of sale.

Problem # 5 If the object of sale perishes (or is destroyed), the loss shall be borne by the seller. According to the stronger opinion, the same rule shall also apply if the object of sale perishes (or is destroyed) after three days

Problem # 6 If a person sells some thing that is prone to perish, so that it perishes or is spoiled if detained for a night, like vegetables and some varieties of fruits, and sometimes meat, and the like, and the thing remains with the seller, while the buyer delays (in taking its delivery). In such case the seller shall have the option to revoke the contract before the thing is subjected to spoilage. So the seller may revoke the contract and bring change in the thing as he likes.

Sixth — Option of Inspection

The Option of Inspection applies in case a person buys a thing by description without having inspected it, and subsequently he finds it contrary to its description given to him, as being defective. Similarly, the option shall apply if he finds the thing different from what he had inspected earlier. In such case, he shall have the option (to revoke the contract of sale). So also in case a person sells a thing with a different description, and he finds it more than described by him or finds it more than what he had inspected before, or finds the price different from what had been described, that is, deficient from what had been described, then the seller shall have the option to revoke the contract of sale in all such cases.

Problem # 1 By option here is meant rejection or detention (of the object of sale) gratis. The person possessing the right of option shall not be entitled to detain the object of sale against receipt of indemnity, in the same way as his option is not dropped by payment (of the indemnity) or changing the commodity by another commodity. Of course, if the quality absent in the object is effective in its soundness, the receipt of indemnity shall be justified due to the defect and not due to the difference in the quality or description.

Problem # 2 This option is applicable in case of the sale of a definite commodity that is not present at the time of the sale and purchase, and it is a condition for the validity of the bargain that either the commodity should have been inspected in a way that satisfaction  should have reached as to the subsistence of its properties; otherwise, there shall be hesitation (in the validity of the bargain), or it should have been described in a manner that would remove ignorance according to the usual practice so as to obtain confidence about its description that may eliminate the risk by mentioning its category, kind and properties that differ with the difference of prices and attractions of the people.

Problem # 3 This option is to be exercised immediately after the inspection, according to the prevalent opinion, but there is hesitation (in accepting this rule).

Problem # 4 This option drops in case its suspension is stipulated in the contract of sale if the confidence removing ignorance is not thereby eliminated; otherwise, it is vitiated and the contract itself is vitiated. The option is also dropped by dropping it after inspection, and by making any change in the object of sale in a way indicating the buyer’s willingness with the bargain, as well as by not expediting to revoke the contract of sale, (as according to the rule) it is to be exercised immediately (after the inspection).

Seventh — Option of Defect

An Option of Defect is applicable when the buyer comes to know of some blemish in the object of sale. So he shall have the option either to revoke the contract of sale or detain the object subject to receipt of indemnity, provided that he has not already dropped the rejection by word or deed signifying it, and has not made any change in the object bringing any alteration in the object, and no defect has taken place in the object after the expiry of the period of option during which the seller is bound to indemnify the buyer, like the Option of Animal (or beast of burden) or Options of Meeting and Condition, when the latter two are exclusively related to the buyer. Apparently the criterion for its suspension is that the object of sale ceases to be in its original condition due to its destruction or what is treated as such, or due to some defect or deficiency, even if it is not a defect. Of course, apparently the option is not dropped by any change through excess if it does not necessarily bring any defect in the object, even if it produces mixture. Anyhow, in case of existence of any of the conditions mentioned, the buyer shall not be entitled to return the object; rather, a special indemnity is established for him. As this option is established for the buyer when he finds any defect in the object of sale, in the same way it is established for the seller if he finds any defect in the specified price. By defect here is meant excess or deficiency whatever as to the natural way and original creation like blindness, lameness, etc.

Problem # 1 This option is established if the defect actually existed at the time of the conclusion of the contract of sale, even if it is not apparent later The appearance of the defect is a proof of its existence from before and not the existence of the defect being a cause of obtaining the option. So the option is dropped in case of its suspension before the appearance of the defect, in the same way as it is dropped after it. Similarly it is dropped if its suspension is stipulated in the contract, or by (seller’s) exonerating himself from the liability for any defect by saying: ‘I have sold this commodity along with all its defects’. As the option is dropped by (the seller’s) exonerating himself from the liability of any defect, so the right to demand indemnity also drops, as its suspension at the time of the conclusion of the contract or after it depends on the contract of sale.

Problem # 2 As the option is established by the existence of the defect at the time of conclusion of the contract, so also it is established by its taking place after the conclusion of the contract but before the delivery. A defect that takes place after the conclusion of the contract impedes the return of the object, provided that the defect has taken place in the object after it delivery and after the option of the buyer due to the seller’s liability, as already mentioned. If its takes place before the delivery, it shall engender the option, and shall not impede the return (of the object of sale) or revocation of the contract of sale due to the existence of the defect previously in a preferential way.

Problem # 3 If the object of sale was defective at the time of the conclusion of the contract of sale, but the defect is removed before it becomes apparent, then apparently the option shall also drop. Rather the suspension of the indemnity shall also not be devoid of closeness (to the rule), though it is more cautious to reach a compromise.

Problem # 4 The procedure of receiving the indemnity is that first the price of the object is assessed in its sound condition, and then its price is assessed in its defective condition, then the ratio is found between both of them, and then the specified price is reduced in the same ratio. Thus, if its price in its sound condition is assessed as nine, and in its defective condition as seven, then if, suppose, the specified price is six, then two shall be deducted from six; and so on. For its determination, reference must be made to the experts. It is stronger to rely on the opinion of a single trustworthy person from among the experts, though it is more cautious to rely on several and morally sound witnesses as is required in the case of evidence.

Problem # 5 If the assessors differ in the assessment of the sound and defective object, or both, then it shall be more cautious to resolve it through compromise. In some cases it is not far from resorting to casting lots.

Problem # 6 If a person sells two things by a single transaction, and then one of them turns out to be defective. The buyer shall be entitled either to accept them along with an indemnity, or reject them altogether. He is not entitled to separate them by rejecting the defective one only. Similarly, if two persons share in the purchase of a commodity, and that turns out to be defective, then one of them shall not be entitled to reject his share of the commodity even if his partner does not agree. There is hesitation in accepting the rule, particularly in the latter case. Of course, if the seller agrees, it shall be permissible, and it shall be valid to separate the shares in both the cases, without any hesitation.