Tafarruq al-safqa (partition of a contract)

تفرق الصفقة

Partition of the deal (tafarruq al-safqa): the ruling of the contract does not reach the whole of what is contracted, or reaches it and then leaves part of it; safqa lexically is the clapping of hands at sale and so the contract itself. ¹ Distinguished from plurality of deals, which can arise by splitting the price between two items or by several parties, and from selling at two prices in one contract; partition is only in one deal. ¹² The Hanafis treat partition in the loss of part of the goods, in the defective goods and in eviction; the Shafiis split plurality into the initial and the continuing; the Hanbalis give cases of mixed goods. ² Selling what one owns with what one does not: valid in what one owns and suspended in the rest, for Abu Hanifa and Malik; the Hanbalis have two views; the Shafiis split the price by parts; the buyer, if ignorant, has the option, the seller has none. ²³ Effect of the option: confirm or annul; if he confirms the rest he pays its share of the price, in the Shafii view. ³ Option of partial eviction: if part of the goods is evicted before receipt, the evicted part is void and the buyer has an option over the rest; after receipt the rule depends on whether the goods are valued or uniform. ⁴⁵ Option of partial loss before receipt: the buyer may confirm or annul, and the price drops by the lost share if the loss is in quantity; for the Shafiis, if one of two goods perishes before receipt the contract stands and the buyer has the option; a missing share of a deferred delivery gives the option to annul or confirm. ⁶⁷