RIGHT OF OPTIONS

(KHIYARAT)

DEFINITION
Wahbah al-Zuhaili

Khiyar is an option to continue or

discontinue the contract due to certain
circumstances.
Sheikh Mohsin

Both party were given the option to choose to

continue the sales or to discontinue (fasakh) according
to the rules or certain circumstances.

TYPES OF KHIYAR
Khiyar divided to 5:(i) Khiyar Majlis- the condition of withdrawing from the contract as long as the meetings of the
parties continue

(ii) Khiyar Syarat (Al-Shart) -optional condition, where one of the parties stipulates for a
period of three days or less

(iii) Khiyar Aib (Al-Ayb)-option from defect, the option of dissolving the contract on
discovery of defect

(iv) Khiyar Tayin-option of determination, where a person having purchased two or three
things of the same kind, stipulates a period to make his selection

(v) Khiyar Rukyah- option of inspection, option of rejecting the thing purchased after sight

KHIYAR AL-MAJLIS
(OPTION OF MEETING)

KHIYAR MAJLIS
Definition:
Option during the meeting means each one the parties has
the right to confirm or cancel the contract in the negotiation
stage of the contracy, as long as the two parties still there and
have not left.

KHIYAR MAJLIS

Literal: based on the

doctrine of Khiyar AlMajlis:
(a) gives each of the
parties to a contract of
sale the
option of
withdrawing from the
contract so long as they
have not physically
separated; and
(b) There is no time limit
to the Majlis (meeting)
which only ends when
one party leaves the
meeting place.

According to NG
Coulson :-

This principle only

applies to contracts
made in a face to
face meeting and its
purpose is to ensure
that the parties are
as sure about the
transaction.

Continue..
(ii) Technical

1st Part

2nd Part

According to Al-Jaziri, there are 2 parts,

whereby:

so long as the parties do not leave the place

of contract, any of them (seller or purchaser)
can cancel the deal.

however, if it is stipulated that the contract

has been finalized even if the parties do not
separate, Khiyar Majlis will not be
available.

Different
Khiyar al-Majlis is different from Majlis Aqad in the application
because Majlis aqad is a gathering place or the place for such agreement
or place of business. As for Khiyar Al-Majlis the purpose is to give a
right and choice to the related party either to proceed or cancel the
agreement aslong the Majlis not be dissolved.
According to Mazhabs Shafie and Hambali:
Pursuant to surah Al-Maidah;
the parties which are binding to a contract and other party no right
to revoke the contract

LEGALITY
(i) Al-Sunnah
(ii) Al-Hadis
(iii) Ijmak
(iv) Qias

LEGALITY
(i) Al-Sunnah
Ibn Umar reports that Prophet (PBUH) said :
if two men conduct a sale, each one of them has the right of choice until they part or until one of them
gives the choice to the other and they conclude the sale, the sale is then confirmed.
(This hadith is narrated by al-Bukhari and Muslim)

Hakeem Ibn Hizam reports that the

Prophet(PBUH) said :
the two sale parties have the choice until they are truthful and clear, their sale will be blessed ,if they
tell lies(deceive ) and hide secrets, the blessing of their sale will be annihilated
(Riwayat Bukhari & Muslim)

View from the 4 Mazhabs

Mazhab Shafie and Hambali

The Ulamas have a different view pertaining to this Khiyar. According to

Mazhab Shafie and Hambali, Both of them agreed with the Khiyar Majlis
and stated that this contract is not binding and undecided as long the
parties still in the place to execute the contract. Both parties still have
the rights either to accept or cancel . However, when one of the party or
both parties apart which each other or get out from the designated place
automatically the contract is concluded and parties are bound to it.
In addition, according to Mazhab Shafie it is an obligation to the party
that accept that offer to accept immediately once the offer is out to give
a chance to the parties to re-think about the offer and enough time to
apply Khiyar Al-Majlis.

Mazhab Hanafi and Maliki

However according to Mazhab Hanafi and Maliki, once the contract is concluded with a

positive offer proposal and acceptance, it is ultimate and binding and neither one the
parties has the choice of backing down from it. They provide as evidence the Quranic
commandment to the believers to keep their contract referring to Surah Al-Maidah ayat 1:
O mankind, satisfied and concluded the agreements.

The above surah stated that Muslim is binding with their contract and according to this 2

Mazhab the application of this Khiyar is contradict with the stated surah.

Mazhab maliki also rejected this Khiyar Majlis because Madinah people did not practiced

Khiyar al-Majlis during our Prophet time.

KHIYAR AL-SYARAT
(OPTION OF CONDITION)

Khiyar Al-Syarat
It is a right given to the parties or another person to

confirm or cancel the contract during an agreed period of

time.
Contradict with Prophetic tradition but accepted on 2
reasons:
1. Prophet accepted and sanctioned it
2. Some people may not be clever about trading and
need expert opinion

Applicable to binding, necessary and committing

contract which are cancellable even it was committing
to one party e.g. sae,rent partnership, warranty

Issues
1.

Who has the option of condition

Both or either one of the parties
Abu Hanifah, Malik, Ahmad Ibn Hanbal, the Zaidis and
Al-Shafie one of the parties may delegate it to the
stranger
Parties may not be knowledgeable and need expert
opinion
Al-Shafie and Zufar not permissible to delegate to
another person. Option was meant originally to be
used by contracting parties. The practice of delegating
it to another person means transferring the power over
the contract to a stranger

2.Period of Option of Condition

Abu Hanifa, Zufar and Al-Shafie
-does not exceed 3 days
-this period is given to the parties to determine
Abu Yusuf, Muhammad and Ahmad ibn Hanbal
-can exceed 3 days and may be longer provided that the time is
determined and defined
-to give ample time to decide, so should not limit
Imam Malik
-originally 3 days but can be extended to sufficient time
-in case where the subject matter of contract was in a place which is
very far and could not be reached within 3 days
Zaidis
-period should be set and made known provided it is within 3 days
Parties claim different agreed period-shorter one would be considered
Parties keep silent and do not specify the period 3 days

3.Cancellation of contract in the option of condition (verbal

/ action)
Abu Hanifa & Muhammad
-other party has to be informed of the cancellation
-this is to safeguard the interest of the other parties
Hanbalis, Abu Yusuf and Hanafi
-the party who has the option can cancel the contract in
the absent of the other party without his consent
Zaidi
-The other party has to be informed of the cancellation

4. Ownership of subject matter during the period of option

Abu Hanifa
-the ownership does not transfer to the buyer during the period of
option, price also should not paid by the buyer to the seller during
this period.
-but, if the option belongs to the seller alone, ownership not transfer
but the price should go out of the ownership of the buyer
-to avoid having both price and sold object in the possession of the
seller
Abu Yusuf and Muhammad
-Price = ownership of the seller
-but if option be on the buyer, price does not go out of his possession
but the sold object goes out the possession of the seller without
entering the possession of the buyer
Abu Hanifah, Abu Yusuf, Muhammad and Malikis
-the sold object does not go out of the ownership of the seller during
the period of the option
Shafie and Hanbalis
-the ownership should be transferred during the period of option

5.Responsibility of the maintenance expenses of the subject

matter and right to the increase
-Hanafi and Maliki
Responsibility of the seller
-Other scholars
-responsibility of the buyer

6.Option nullified with death

-Hanafi and Hanbalis
-option is dropped and not transfer to the heirs
-consider it as personal right
-Malikis and Shafies
-option is transferred to the heirs as it is a financial right not
personal right
-the option of condition is lost by the death of the parties who
has it

7.Delegating the option of condition to others

-cannot withdraw except with the death of the third person
-agent cant delegate the option to another person except
with the approval of the appointer
If the agent dies, the right goes back to the original party

8. Differences in the option of condition

-burder of proof one who denies on the condition and he
has to deliver solemn oath in the absence of the
conclusive proof

KHIYAR AL-RUYAH
(OPTION OF VIEWING)

General rule
In order to conclude a valid binding contract the subject

matter must exist at the time of the contract in order to

avoid gharar or uncertainty.
But, this strict rule will caused hardship to the
contracting parties
Thus the Muslim jurist had allow exceptions to the strict
rule of existence.
As for example, bay al-salam (sale by advance payment
for the future delivery), bay al-istisna (contract of
manufacture), Ijarah (contract of hire) and musaqat
(contract of irrigation).

 But still all this kind of transaction still has its own stage

of uncertainty (gharar) because the party still has not

seen the subject matter yet.
Thus, to avoid uncertainty the purchaser given power to

opt whether to continue or rescind the contract

concluded between them after seeing and inspect the
subject matter.
This option known as option of viewing or option of sight

(khiyar al-ruyah). This option also known as option of

inspection because not only see but

Purposes of khiyar al-ruyah

1.

To avoid injustice that may lead to ignorance and

dispute among parties.

2.

To protect the interest (istihsan) of Muslim and to

prevent any disputes among them.

3.

To avoid unfairness when they have no experience or

ability to market place to buy things they have not
seen.

Legality of khiyar al-ruyah

Hanafis, Malikis, and Hanbalis
They admitted the legality of this
option based on the authority of
hadiths reported by Ibn Abbas and
Abu Hurairah:
He who buy something which he has
not yet seeing has the option upon
seeing it either to accept or refuse it.
Hanafis, Malikis and Zaidis give the
right of the option of viewing only to
the buyer
Hanbalis and Zahiris give the right to
exercise this option to the seller and
the buyer

Shafiis
Refused and remains with the strict
rule of transaction.
Any transaction will be consider void
and invalid if the subject matter is not
existing and cannot be seeing.
Following is the authority of hadith:
Prophet Muhammad S.A.W. forbid
cheating in selling
(Reported by Abu Muslim from
Hurairah)
Second, Shafiis does not accept the
hadiths mentioned by Hanafi, Maliki,
and Hanbali as authority which he
describes as weak or incorrect hadiths
(hadiths daif).

Conditions of the Option of Viewing

1.

The subject matter of transaction must define as to its

kind, genus, value to prevent any imbalance between
the parties obligation.

2.

The party should not have seen the subject matter

before. If the party has seen the subject matter before,
the option will not applicable anymore. The viewing
can be in other form such as touch, smell, or taste.

3.

The party can only exercised the option after the

purchaser have seen the subject matter.

The Period to have the Option and its

Duration
General Rule

duration of option is depend on the subject matter itself.

Subject matter

Perishable - option will

applicable for long period

Imperishable - must make his

decision as soon as possible

For example, if the contract is related to foods stuff such as fruits or

vegetables which are cannot last long, then the party should make his
option clear so if the buyer insists to terminate the contract the seller still
have the opportunity to sell the things to other party who interested.

Muslim jurists differ in term of determining the period in order to avoid existence
of uncertainty (gharar) in the contract. Gharar here refer to the decision whether
the parties still want to continue or terminate the contract.

Hanafis

option can last until it is become extinguish

either by annulment or eventual lapsed
The period are depend on the party to
decide whether to make the period last long
or make the option of sight only applicable
for short period

Malikis

option last to limited time after the party had

seen the subject matter
If the person has the opportunity to
terminate the contract after viewing taken
place but he did not do so, thus the option
of viewing will not applicable upon him to be
exercised and the contract considered as
binding upon him

The party made his declaration of

option after he saw the subject
matter either by disposition or
expression.

The party had seen part of the object

which can represent the whole of the
subject matter.

The subject matter destroyed

whiles the subject matter in the
hand of the purchaser after it
has been delivered.

Termination
of the Option
of Viewing

The buyer paid for the price of the

subject matter after he saw the
subject matter.

Deaths of the party also

extinguish the option of
inspection.

If the buyer gives the subject

matter as a mortgage,
automatically the option of
inspection will be terminated.

The Effects of Option of Viewing

Contracting party who did not see the subject
matter has the option either to continue or
rescind the contract after viewing take place.

The right to rescind or accept the contract is

on the part of the party who exercised the
option of viewing unless he looses his right by
saying, I accepted the contract or, I am
satisfied with the contract.
Thus the contract will be binding if he does

something that can be considered as he had

accepted the subject matter. If he opts to
annul it then the contract considered has
never been existed.

KHIYAR AL-AYB
(OPTION OF DEFECT)

Meaning of khiyar al-ayb

It is an option given to a party to rescind the contract

when he discovers in the subject, defect that reduces its

value or that makes it fall short of its requirements or
specifications.
The Malikis termed this option as khiyar al-Naqisah or

the option of reduction.

It is a general rule that there should be no deceit or fraud

in sale transactions among Muslims. As such, this

necessitates the security of sale i.e. the right of option

 This type of option arises only if the contract has been

concluded.
If the contract is still in the state of negotiation or still
under discussion, the affected party cannot exercise this
option.
If anything appears in the subject of the contract which
does not match its original use or decreases its
conventional market value, or makes it unfit to meet
requirements expected of it, then the buyer have the
right to exercise option of defect, as freedom from
defects is the right of the buyer given in any commercial
transactions.

Purpose of the Option

If the defect reduces the value of the object, so it is only

fair to give the party a choice as when the subject matter

has defect, the consent or satisfaction of parties involved
are one-sided.

Surah An-Nisa Verse 29

Allah S.W.T prohibits taking money of others illegally and

command that trading should be conducted with mutual

consent as stated in an-Nisa:29.
O ye who believe! Eat not up your property among

yourselves in vanities: but let be there amongst you

traffic and trade by mutual good will: nor kill or destroy
yourselves: for verily God any hath been to you Most
Merciful!

Hadiths:
The Prophet s.a.w says:
A Muslim is a brother to another Muslim. It is illegal for a
Muslim to sell his brother a deficient thing unless he
makes it clear to him
It is illegal for someone to sell something without showing
its real qualities; and it is illegal for someone who knows
about it not to show it.

It is reported that the Prophet s.a.w passed by someone

selling foodstuff. He (the Prophet) put his hand in it and
found it wet, then he said, He who cheats us is not one of
us

The Mejelle, Article 336:

Any buyer in Islamic law has an automatic implied
warranty against latent defects in the goods purchased.

Conditions for Option of Defect to Become

Applicable
1.

2.

3.

4.

The defect have existed in the subject matter prior to the

time of sale or it occurs before the delivery and while it is
still in the hands of the seller.
The defect which existed in the subject matter decreases its
value or renders it unfit for the purpose to which it is
intended
The buyer must be unaware of the defect at the time of
contracting and taking the subject matter into his
possession. If the seller indicates that the defect is so
manifestly obvious so as not to escape defection and the
buyer accepted it without protest, he is considered to have
waived his right.
The absence of stipulation for waiving or releasing the
seller from liability for the defect in the subject matter

What if express provisions were stipulated

on acquittal from liability if defects found?
the Option is not lost if both parties agree to acquit each

other of all defects.

Abu Hanifah and Abu Yusuf consider a sale which
contains a provision of acquitting of defects as valid, even
if the defects were not mentioned in detail.
It is of no consequence whether the defect existed before
the contract or after it BUT before the buyer receives the
sold object.

What if express provisions were stipulated

on acquittal from liability if defects found?
Imam Malik, Al-Shafie and
Muhammad ibn Al-Hasan
The provision of acquittal
covers only the defects
which exist at the time of the
conclusion of the contract; it
does not cover defects
occuring after that and
before the buyer receives
the sold object

Zaidis

If the two parties agree to

acquit of all defects,
apparent or hidden, the
option is dropped

Conditions under which right of Option of

Defect cannot be exercised
When the buyer, after he has known the defect in the
subject matter, insists or continues on buying the thing.
2. When the buyer knew the defect in the subject matter
but transfers or gives it to other persons as a gift or as
a selling thing. He loses his right of option of defect.
3. When the seller sells a thing with a condition that he
shall not be made liable for any defect in the subject
matter and the buyer agreed upon that condition. The
buyer loss his right of option of defect.
1.

Conditions under which right of Option

of Defect cannot be exercised
4.

If the defect is slight and if it does not reduce the value

of the object, and if it is conventional to overlook it,
then the party cannot use it as a pretext to return the
sold object

5.

If the new defect occurs in the subject matter while it is

in the possession of the buyer and he discovers that
the object had an old defect while it was in the
possession of the seller, then the buyer can claim the
reduction of the value but he cannot return the object.

What if the buyer keeps silent of the defect in

the subject matter?
The right of khiyar will not be available if the defect is the

one which could be apparent with usual examination and

the buyer knows of it.
However, if the defect does not appear at the usual

examination, the option is never dropped.

Is the Option Transferable to Heirs?

The option of defect is one of the options that are

transferable to the inheritors as it is attached to the

subject of the contract.
The option holders death does not cause the option to be
lost because the object itself is transmitted to inheritors,
and thus so is the option.
This is because inheritors should inherit a sound and not
a defective object.

Applicability of the right of Option

contract of sale

contract of Ijarah (hire)

contract of exchange of currency
Mahr payment,
Sulh (reconciliation) involving agreement or setting blood

money, that is all contracts whose purpose is the

exchange of counter values.
However, in contracts whose primary aim is not mutual
exchange of counter-values there is no dispute that
defects have no effects in them whatsoever.

KHIYAR AL-TAYIN
(OPTION OF DETERMINATION)

 The parties have the option to choose the object of sale

out of multiple varieties of a given article.

The purpose of this Khiyar is to give wide choice to the

buyer to choose and the seller to stipulate the subject

matter of the contract.
For example the parties may purchase one out of three

varieties of commodities of different qualities (excellent,

average and poor) without specifying which particular
varieties would be purchased on the condition that those
the subject matter from the same class but different
qualities and different price.

 For example the object were car and have three types,

Audi, Perdana V6, and Dutson also have different

qualities and different price. In this situation, the seller
have the option to determine the object, price and the
qualities of the subject matter of the contract itself.

 This option only applicable to the parties of the contract

only in a stipulated time.

This option cannot be stipulated by the third parties.

However, some scholar in the opinion that this option

only applicable to the buyer only.
Duration of this option according to the nature of the

transaction. Imam Abu Hanifa maintain that the period of

this khiyar At-Tayin same as khiyar al syakk which is 3
days. However duration of option must be precisely
defined by contracting parties.

 Syafie and Hanbalis do not recognize this option. They

are in the opinion that if the subject matter of the

contract is not determined sufficiently then it is not
confirming the basic principle of Islamic Transaction.
They also argued that there is no authority on Hadith
about Khiyar At-Tayin.
Hanafi and Maliki approved Khiyar at-Tayin on the

basis of Istihsan and affirmed that the option has been

introduce to prevent any damages

CONDITIONS OF KHIYAR AL TAYIN

1.

2.
3.
4.

5.

6.

This option is applicable in commutative contract (unchanged of

quantities) for valuable consideration and in which property is
transferred. It is therefore restricted to the contract of sale, barter,
give and trust.
Choice of determination may only be exercised between a maximum
of 3 object which have three qualities, good, medium and bad
If the object were less or more than 3, the contract will be voidable
on the ground of Gharar( uncertainty)
This option only applicable to the parties of the contract only and not
to the third party it is for the purpose to avoid in justice among the
parties of the contract
Option of determination must expressly stipulate in the contract
which means that both of them knew that they have the option to
choose the subject matter of the contract. If not, the seller must
inform the buyer.
Hanafis require that the object which the choice is made must be all
the same class but must different quality or kind for the option to be
of any consequences.