Khiyar al-majlis (option of the session)

Khiyar al-majlis is the contractor's right to confirm or annul the contract from the moment of contracting until the parties part or mutually choose. ¹ Al-majlis here names a place of sitting, and means the session of the contract, the place of the exchange; it is a unit of time beginning with the offer, continuing while the two parties remain engaged in contracting, and ending by parting. ¹ The option does not begin at the offer but at the acceptance matching it; what precedes acceptance is a distinct option called the option of acceptance. ¹ Neither the fact of sitting nor leaving the session is what counts, but the state of the parties, their absorption in contracting. ¹ Some call it the option of the two parties from the hadith "the two parties have the option". ²

The majority of jurists, early and later, affirm the option of the session, among them the Shafiis and Hanbalis; for them the contract binds only on parting from the session or on mutual choosing of confirmation. ² The Hanafis, the Malikis and some early jurists deny it; among the deniers whose schools were not recorded are al-Thawri, al-Layth and al-Anbari. ² The affirmers argue from Ibn Umar's report "the two parties each have the option over the other as long as they have not parted, except a sale of option", with transmissions "or the sale was by option" and "or one gives the other the choice", and from Ibn Umar's statement "the sunna was that the two parties had the option until they parted", a Companion's word about the sunna having the force of a raised report. ² They also argue from the practical sunna, his giving a man the choice after a sale by saying "choose" then "this is how sale is", and from reason in people's need for it, since one who has sold may change his mind and regret, and the option in the session lets him recover. ³

The deniers argued from Surah al-Nisa ayah 29, which permits trade by mutual consent without the condition of parting, and from Surah al-Ma'ida ayah 1, since a contract not binding cannot carry the duty of fulfilment. ³ From the sunna they cite "whoever buys food must not sell it until he has received it in full" — had parting been a condition it would have been mentioned — the transmission "it is not lawful for him to leave his companion for fear he may ask to cancel", and "Muslims are bound by their conditions", since an option after the contract would corrupt conditions. ³⁴ They analogised sale with marriage, khul', manumission for payment and kitaba, all exchange contracts completed without a session option; analogised before-parting with after-parting; called it an option over an unknown since the session's length is unknown, a gross ignorance forbidden in law; and held that an unconditional contract requires ownership to pass in both countervalues at once, so annulment would be a disposition over a contract established without the other's consent. ⁴

The option stands from the moment the contract is completed, after the acceptance matching the offer. ⁴ Its duration cannot be fixed since it rests on each party's will: it lengthens with their wish for more deliberation and shortens when the hasty one offers his companion the choice or leaves him; in this it differs from the option of stipulation, which rests on a defined term. ⁴ A Shafii view al-Nawawi calls weak caps it at three days so it does not exceed the option of stipulation; a third view lapses it when a party turns to another matter and away from the contract after a long lapse; the preponderant view holds it until parting or choosing. ⁴⁵

Its endings are parting — agreed among the affirmers and governed by the parties' custom — mutual choosing, which is both parties choosing the contract's bindingness by saying "we chose its bindingness" or "we confirmed it" and the like, annulment consequent on the contract's own ending, dealing, and death, the last disputed among the affirming schools. ⁵ The affirmers dispute the ending by mutual choosing: the Shafiis and Ahmad on the transmission Ibn Qudama calls sounder hold that it ends the option; Ahmad's other transmission, the apparent words of al-Kharqi, holds it does not, since most reports confine the ending to "as long as they have not parted", while the corrected transmission rests on the reports mentioning both endings. ⁵ Choosing occurs expressly or implicitly, as when the parties re-trade the two countervalues in the session after taking them, implying consent to the first contract's bindingness; one party's dealing with his own countervalue suffices. ⁶

The party who stays silent after his companion offers him the choice does not lose his option at the Shafiis and on the sounder Hanbali view, since nothing from him voids it — he only kept silent about annulment or confirmation; a second Hanbali view lapses it by analogy with its establishment, which is indivisible and so likewise is its lapse. ⁶ The one who offered the choice and received no answer loses his option on the sounder Shafii and Hanbali view, since the hadith makes the contractor's outcome contingent on his issuing the choice and he gave his companion what he owned; a second view keeps it, since his offering sought a shared decision that did not come about. ⁷

Annulment by either party dissolves the contract even if the other insists on confirming, since the option was established to enable annulment, not confirmation which is original, and annulment is the option's purpose as al-Nawawi says. ⁷ The option lapses with the annulment as a consequence of the contract's lapse, not by resting on it, under the rule "when a thing is void, what is within it is void". ⁷

On dealing, the Shafiis part from the Hanbalis: the Shafiis deny that dealing in the goods or the price lapses the session option, and some state explicitly, as al-Jamal's gloss on Sharh al-Manhaj, that the buyer's riding the purchased mount does not cut his option since it may be a test. ⁷⁸ At the Hanbalis the buyer's dealing with the seller's leave lapses both parties' options and the dealing is valid, indicating consent to confirmation and no less effective than mutual choosing; the seller's dealing with the buyer's leave is the like on the preponderant view. ⁸ A transferring dealing such as sale, gift or waqf, or an encumbering one such as hire or pledge, does not lapse the option for the seller who dealt in what is not his, ownership during the option being the buyer's on their view; for the buyer it drops the seller's right of option and bars the dealing's validity since the seller's right attached to it. ⁸

Waiving the option at the outset, the parties trading on condition of negating the option, has three views: valid waiver, the Hanbali school and an unauthenticated Shafii view; impossible waiver with the sale void, the sounder Shafii view stated in al-Buwayti and the old-school books; and impossible waiver with the sale valid, an unauthenticated view. ⁸ Whether both waive or only one: waiving both options binds the contract, waiving one leaves the other's option. ⁹ The validators argue from the hadith "if one gives the other the choice and they trade on it, the sale is binding", which is general and covers choosing at the contract's start, from the option being a kindness to the parties which they may leave, from its being a gharar that may be dropped, and from its likeness to the option of stipulation which a contract may be made without. ⁹ The case for impossibility, the sounder view in al-Shafi'i's school, is that it waives a right before its cause is established, the option arising only after the sale's completion and so unwaivable before it; its analogue is the right of pre-emption, which cannot be waived before it arises, and some argue that waiving it contradicts the sale's import, which is established accompanied by the option, like stipulating that the goods not be delivered. ⁹

On the effect of death there are three views: the option passes to the heir, the sounder view in al-Shafi'i's school; it lapses at death, the Hanbali school; and a distinction between the deceased's having claimed it in his will and his not having done so, a Hanbali view. ⁹¹⁰ The transfer party argue from the apparent Qur'an and hadiths on the passing of the deceased's rights to the heirs, including "whoever leaves property, it is for his heirs", and from analogising the option of the session with the option of defect — both necessary rights established in sale by law, and the defect option passes by death without dispute — and with the option of stipulation, which they hold is inherited. ¹⁰ The voiding party argue that it is a will and choice attached to the contractor's person, whose transfer to an heir is inconceivable. ¹⁰

If a party is struck by madness in the session or faints, the option passes on the sounder view to the guardian, judge or other, as a principal's does at his agent's death; some conditioned this on despair of recovery or long duration, but the preponderant view waits for nothing. ¹⁰ If he becomes mute and neither his gesture nor writing is understood, the judge appoints a deputy for him; if his gesture is understood or he can write, he keeps his option. ¹⁰ Another view lapses the option in madness and fainting, departing reason being no weaker than departing the place. ¹⁰ The Hanbalis hold madness does not void it: on waking he holds his option, and in enveloping madness his father, executor or the judge stands in his place, unlike death which is the greater of the two partings. ¹¹

The agreed principal effect of the session option is preventing the contract's bindingness until parting or choosing confirmation, each party holding annulment before then, since the option's purpose is annulment and that requires the contract to fall short of the rank of strength and resistance to annulment. ¹¹ On its effect on the transfer of ownership there are two views: the Hanbalis in the apparent school hold ownership passes to the buyer despite the option, which has no effect on the contract's enforceability or validity, so it yields all its rulings while remaining annullable through the session. ¹¹ The Shafiis on the clearest of three views hold the option affects the enforceability of the contract's rulings, which are suspended and awaited as to transfer of ownership: it is judged owned by neither buyer nor seller but awaited; if the contract completes it is judged to have been the buyer's by the contract itself, else the seller proved never to have lost ownership, and likewise the price. ¹² The transfer party argue from the hadith "whoever sells a slave who has property, his property is the seller's unless the buyer stipulates it" and "whoever sells palms after they are pollinated, their fruit is the seller's unless the buyer stipulates", since the property and the fruit go to the buyer by mere stipulation, and from reason, since a sale with the session option is a valid sale transferring ownership by its effect, the option's standing not negating that. ¹² The second party argue that an option standing for the seller alone bars the transfer, one standing for the buyer alone effects it, so when it stands for both, as the session option does by law, the two implications conflict and suspension until its ending is required. ¹²

The option of the session has no effect on the option of stipulation: the stipulated term counts from the contract in which the condition was made, or from the stipulation itself if made in the session. ¹²