Takhliya (making a thing available to the taker)

Takhliya is enabling a person to deal with a thing without any obstacle. It is a form of delivery (taslim), and its effect is taking possession (qabd). ^{1 2}

Takhliya is the verbal noun of khallā, meaning to leave or give up. In the jurists' usage it is enabling a person to deal with a thing without obstacle. In a sale, if the seller allows the buyer to take the goods and nothing stands in the way, the enabling has occurred and the buyer counts as having taken possession. The word is also used in the sense of release, as when one says a murderer is not released on bail. ¹

• Qabd (taking possession): holding a thing and being able to deal with it. Takhliya differs from qabd in two ways: it is a kind of qabd, which may also occur by taking in hand, carrying or destroying; and it comes from the giver, whereas qabd comes from the taker. ¹
• Taslim (delivery): handing a thing over whole and clear; in meaning it is close to takhliya, and the Hanafis say that in their school taslim is takhliya. The majority hold that takhliya is delivery where the thing sold is real property. ¹

Takhliya is possession for real property by agreement. Over fruit on the tree, the Hanafis and Shafi'is hold it is possession, the Malikis and Hanbalis disagree. ² For movable goods, the Hanafis, a view among the Shafi'is and a narration among the Hanbalis treat takhliya as possession in law where the taker can take the thing without cost, varying with the goods: handing over the key of a room with grain, or the sheep in view and marked out, or a cloth within reach. The Hanafis require the seller to say that he has left the goods between the buyer and the thing sold. The Shafi'is in the accepted view and the Hanbalis do not accept takhliya for movables, which must be moved or taken in hand. The Malikis hold that real property is taken by handing over its keys, and other things by custom. ^{2 3}

Where takhliya counts as delivery and possession, liability passes from the giver to the taker, who then bears any loss. In a sale, if possession comes by takhliya, the buyer bears the liability, as the schools agree. The Malikis add that in a valid sale liability arises at the contract itself, and possession is needed only in cases such as a sale of an absent item, a void sale, a sale with an option, and sales where measure is owed. ^{2 3} Contracts such as pledge, loan, loan of use, and gift are complete only with possession. When takhliya meets its conditions and is treated as possession, the contract is complete and its effects follow. ³

Jurists discuss takhliya in the delivery of a sale, and in salam, pledge, gift and other contracts that mention possession of real property or movables. Some use the word in the sense of release in criminal matters and release of a detainee on bail, and some treat keeping a road clear of enemies in the chapter on hajj. ³