Khiyar al-ru'ya (option of sight)

خيار الرؤية

The option of sight (khiyar al-ru'ya) is a right to annul or confirm when one sees the specific thing contracted that one had not seen; it is set by the law for the Hanafis, required as a stipulation by the Malikis for the sale of an absent thing, and denied by the new Shafii view and the better Hanbali report. ¹ It concerns the sale of the absent: absence means not seen at the contract, whether it is away from the session or hidden from the eye. ¹ Ruling: the Hanafis rely on "God has made sale lawful" and the report "he who buys what he has not seen has the option when he sees it", and the judgement of Talha and Uthman; the Shafiis and others reject it. ²³ Sight means knowing the principal object of the contract, by any sense. ³ Sight in fungibles and in values: a specific measure is like a specific thing, while a described debt has no option of sight; values such as animals, lands and varied cloths need the sight of each item, since sight of one does not show the rest. ³⁴ Cases: through glass (Abu Hanifa requires seeing the thing without barrier; Muhammad allows), in water (fish: no), by mirror (no), through a thin cover (yes), in a light that hides colours (no), the blind by other senses. ⁴ Custom fixes what partial sight suffices, and changes with custom. ⁴⁵ Conditions: the subject must be a specific thing, not a debt (so not currency or debts); the contract must be one which can be annulled by return; the buyer must know at the contract that what he contracts is the one seen before; the seeing before must have been with intent to buy in one view; sight after the contract is the condition for the option to arise. ⁵⁶⁶⁷ On the party: the Hanafis hold the option for the buyer alone; some hold it also for the seller, which was Abu Hanifa's earlier view and an old Shafii view. ⁸ Contracts: it arises in sale, in salam if the capital is specific (for the supplier), not in the deferred goods nor in exchange of money, in istisna' for the buyer, in leasing a specified thing, not in weighed things. ⁸⁹ Time: it arises at the sight, not before; if one allows the contract before sight and then sees it, one may still annul; a waiver before sight is void for the Hanafis. ⁹ Annulment before sight: possible for the Hanafis because of the unknown at contract, not by the option itself; the Malikis hold that property does not pass under the option of sight. ⁹¹⁰ Term: the sounder Hanafi view is that it runs without a set limit; another view makes it immediate after sight. ¹⁰ Effect: the contract before sight is as one without option; after sight it becomes non-binding without affecting transfer; the Malikis differ on resale before sight. ¹⁰¹¹ Ways it ends: a transfer that touches another's right, change of the thing not by the buyer, defect in his hand, one partner's confirmation, death; a plain waiver before sight does not end it, since it is God's right according to al-Kasani. ¹¹¹² Termination: by confirmation, explicit or by act (receipt, cutting, building after sight); by annulment, voluntary or compelled (such as perishing before receipt). ¹²¹³ Conditions of annulment: the option must exist, no split of the deal to the seller, and for Abu Hanifa and Muhammad the seller must know; Abu Yusuf disagrees. ¹³ Transmission: the Hanafis hold it does not pass at death, as it is for general deliberation. ¹³