Khiyar al-kammiyya (option for the unknown quantity of the price)

Kammiyya is a technical verbal noun of "kam", the particle set in the language for asking about amount, and the option of quantity in the jurists' usage, as the author of al-Fatawa al-Sirajiyya defines it, is the seller's option in the price: the seller's right to annul for the hidden amount of the price at the contracting. It is called the option of quantity because it arises from ignorance of the price's amount, the price not being seen in a way that informs but seen in a container whose contents cannot be known; this option is very close in purpose to the option of sight but does not fall under it, for it is settled that the option of sight does not stand in currency. ¹ This option has its applications, though few: it occurs in friendly bargainings and in settlements of rights where the exchanger tenders a purse of money or a bundle of banknotes, and even in ordinary sales a person sometimes buys a thing for the money in his pocket or bag without stating the amount, and affirming this option for the seller when the amount is learned completes the parties' consent. ² The Hanafis affirm this option, list it among the options they count and regard it as complementary to the option of sight; they argued for its establishment by analogy with the option of defect, so that it is an option of deficiency, and its establishment is perhaps a treatment of the ignorance for which the option of sight was established, averting ignorance and reducing gharar; the Hanafi comparison brings it close to the option of sight as though it were it, save that the option of sight is confined to specific things while the option of quantity is for currency. ² Among the conditions of a valid sale is knowing the amount and description of the price when it is of the kind called the absolute prices, which are established without being pointed at; hence knowledge of amount and description is required so that the gross ignorance preventing delivery and receipt is removed, unlike what is pointed at — knowledge of the amount being like saying "ten dirhams", and knowledge of the description specifying the dirhams by the mark distinguishing them from others when dirham kinds differ, since the buyer wants to pay the baser and the seller demands the finer so the purpose of the contract's lawfulness is not met; a contract for an unknown price is invalid, as when one sells a thing for its value, for what falls due, for what the buyer wants or likes, or makes the price the capital or what he bought it for or the like of what so-and-so bought for, and the buyer does not know that amount in the session of the contract — it is not allowed, while if he knows it is permitted; of it too is selling for the like of what people sell for unless the thing does not vary, and selling at the price one previously sold for when that varied, or at what will be sold for in the future, which is corrupt. ² If the price is not named by number and kind but is pointed at, the pointing is either to the thing itself or to its container; in direct pointing to it, as when the dirhams are in his hand visible to him, the contract is valid and binding and he has no option, the reason being that what remains is ignorance of the description, meaning the amount, which does not harm since it does not prevent delivery and receipt; but if it is pointed at while in a container preventing knowledge of its amount even approximately, as in a box or a jar, and he then sees the price outside a container, he has the option because he had not known its amount from outside, as when it is in a purse; Ibn Abidin of the Hanafis then refined the criterion on the basis of knowing what is inside from outside: if it is knowable there is no option, and if it is not knowable from outside it then takes the rule of the jar; and the standard in this is that a container holding the price which indicates its contents, even by approximate indication, does not establish the option of quantity, otherwise the option is established. ³ The Shafiis treat the case where the price is unnamed and undefined, being a purse of dirhams with which the exchange is made by estimate with neither of the parties knowing its amount but both seeing it: the sale is valid without dispute; but is selling for a purse of dirhams by estimate disliked? There are two views at the Shafiis transmitted by the Khurasani scholars, the sounder being that it is disliked, which al-Shirazi and others held decisively for the gharar in it, and the second that it is not disliked because it is seen. ³