Khiyar fawat al-shart (option for loss of the condition)

The option for loss of the condition is an option established upon the loss of an act stipulated from the contractor beyond the contract's own import, the loss of the condition being the failure of its purpose; this option is related to the other kinds of option in that they all remove the binding force of the contract, while each option keeps the annexed ground that establishes it, such as the defect or the sight. ¹ Among the settled principles of the Hanafis is that when a contracting party refuses to fulfil a valid condition he undertook for the other party in the contract, the stipulator's recourse is to the judge so that the defaulting party is made to fulfil by compulsion — this where the condition is one that can be compelled, unlike what the refusing party cannot be compelled to do, such as his undertaking to give a pledge for the price; there they establish the option for loss of the condition though they do not name it so, expressing it instead as a right to annul the contract, and al-Kasani says the buyer is told to pay the pledge or its value or pay the price at once or the seller annuls the sale, and if the buyer refuses all these ways the seller may annul the sale for the loss of the condition and its purpose; he then states that among it is the sale conditioned on giving a guarantor, not counting the stipulation of transfer or guarantee of debt. ¹² The Shafiis took the principle of the prohibition of a sale with a condition, as when one sells on condition that the buyer lend to him, or buys a garment on condition the seller sew it or a crop on condition the seller harvest it; but they excepted from the prohibition forms they judged valid, such as sale conditioned on a term, a pledge or a guarantor — with knowledge and specification in all of them — or on attestation; if the obliged party does not fulfil the condition by not pledging or the named guarantor not guaranteeing, the option is established for the stipulator for the loss of the condition, and it is immediate because it is an option of deficiency; the one on whom the condition was stipulated is not compelled to perform it since the harm is removed by annulment, just as another does not stand in the named pledge's place if it perishes. ² The like holds for the Hanbalis, who state that in a sale conditioned on a pledge and a guarantor, if the obliged party fulfils the condition the contract binds, and if he refuses the stipulator has the choice between annulment and confirmation without compensation for dropping the pledge and guarantor; the Hanbali school is the widest of the schools in regard for conditions, holding that the basis of contracts is the parties' consent and their outcome what the two imposed on themselves by contracting, and they adopted the principle of the contract's import in validating conditions on the ground that the party's benefit belongs to the contract's import even if the contract did not impose it, so they allowed more than the pledge and guarantor to which others confined themselves, provided it does not clash with a revealed text or a principle of the law; and the Hanbalis hold that a condition may be non-binding in itself for the one on whom it is stipulated and yet be validly stipulated, the fruit of its valid stipulation being to enable the stipulator to annul the contract upon non-fulfilment. ²³ The Hanbalis did not mention the option for loss of the condition among the options they list, though the author of Ghayat al-Muntaha deemed it right to add to the eight options current among the Hanbalis a ninth kind: the option established for the buyer upon the loss of a valid condition or the loss of an invalid condition, whether it voids the contract or not; the commentator approved him in the addition though its benefit is formal, since the option is operative in the Hanbali juristic references even if their books do not display it, finding sufficiency in what they give under the option of stipulation of its forms and qualifications. ³ The Shafiis state that the option established for the seller when the buyer is unable to hand over the pledge stipulated in the sale passes to the heir without dispute, and in its lapse and remaining rules there applies what holds in the option of defect, as stated under the option for loss of the description. ³