Khiyar fawat al-wasf (option for loss of a stipulated quality)

The option for loss of a stipulated quality is, on the chosen definition, the right of rescission for the failure of a desired quality the contractor stipulated in the object of the contract; its example is a person buying a thing and stipulating in it a desired quality, as when one buys a horse as a purebred Arab and it proves a hybrid, or buys a steed stipulated as hamlaj, walking swiftly with ease, and it proves tay', swift in jolting and difficulty, and likewise buying a cow stipulated as giving much milk beyond the usual of its kind, and among the working examples stipulating that a dog is a hunter and that the price is guaranteed. ¹ This option is also called the option of the failed stipulated quality, shortened to the option of failure or named the failure of the attribute; some writers sometimes call it the option of the quality, a misleading name since that is mostly used for the conformity of an unseen sold thing to its description when sold on description, which is what removes the option of sight except for one who holds it is for deliberation even if it conforms; some treat it independently and others annex it to the option of defect or the option of stipulation. ¹ Its lawfulness can only be established by establishing its subject, the stipulation of a desired quality in the object which without stipulation would not be established, and the ground of the stipulation's validity is the permissibility of contractual conditions, this matter falling in the zone the jurists do not dispute: the condition counted among the contract's benefits, like stipulating a pledge or a guarantor, while stipulating an additional quality is analogised to it; the Hanafis consider the stipulation of a quality permissible because they liken it to the condition the contract itself requires when free of gharar, since if the quality existed in the goods, without attention to the buyer's stipulating it, it would enter the contract and be of its imports, so stipulating it is valid if free of gharar, and the desired quality belongs to the description of the price or the priced thing so it fits the contract. ¹² Since what matters in allowing the stipulation is the effect that follows a breach — whether corruption or an option — the majority of the jurists hold the effect is the option and do not hold the contract corrupt when the quality fails, because its failure does not produce a change of genus as when a contract is made on one genus and the goods prove another; the loss of the quality is rather a change of kind, the disparity of purposes being slight, so the contract does not corrupt by its loss and it becomes like the loss of the quality of soundness in which stands the option of defect, giving the option of quality by analogy. ² It is affirmed by the Hanafis, Malikis and Hanbalis and by the Shafiis on the sound view; its establishment rests on the option of defect, for the loss of a desired quality after the seller undertook it in the contract means the same as the loss of the quality of soundness when a defect appears, so as the option of defect stands the option of quality stands, both established for the failure of a condition in the object, except that the condition in the option of defect is established by implication as al-Kasani says while in the option of quality it is established expressly; the Shafiis therefore place the option for loss of the quality right after or mingled with the option of defect as al-Shirazi did, and they ground the right of option in it on the goods proving lesser than stipulated, al-Subki adding that it became like the defective thing which comes out lesser than custom requires. ²³ The conditions for the option of the lost quality divide between what must exist in the quality for its stipulation to count and what attaches to the failure or loss of the quality so that a valid sale with the option follows instead of corruption or nullity; the conditions of the quality that counts are that what is sought be a quality, so if it were the ownership of another thing or a benefit or the like it is not of the category of a lost quality but of the conditions, and hence the Hanafis hold stipulating a sheep as pregnant corrupt, for that is not a quality but stipulating an unknown portion of the sold thing and joining the known to the unknown makes all unknown, Ibn Abidin stating that the quality is what enters the sold thing without mention like goodness, trees, building and edges; that the desired quality be lawful, stipulation of forbidden qualities being idle such as stipulating of a ram that it butt or of a cock that it be a fighter for use in forbidden kinds of amusement, since what the Lawgiver does not approve cannot be undertaken; that the quality be determinate and free of gharar so that it can be known and its presence and absence judged; and that it be desirable by custom, for if one stipulated what is not desirable at all, such as the thing being defective, and it proves sound he has no option, and connected to this is the case where the goods prove to carry a better quality than the desired one: if the quality proves better than what he stipulated the contract is binding and he has no option, of its examples stipulating of a camel that it be male and it proves female while the buyer is of the desert people who desire the milk and offspring in it. ³ The schools detail the desirable quality: the Malikis hold it is whatever serves the contractor's purpose whether it carries financial value or not, the purpose being broader than finance; the Shafiis hold it is what carries financial value since prices differ with its presence and absence, Ibn Hajar condensing it as every intended determinate quality that carries value; al-Subki records the division of Imam al-Haramayn, al-Ghazali and al-Rafi'i of stipulated qualities into three: one to which a financial increase attaches that may validly be undertaken, the option standing on its failure; one to which a sound non-financial purpose attaches, its failure establishing the option on a disputed view; and one to which neither value nor intended purpose attaches, its stipulation being idle with no option on its loss, al-Nawawi's preferred reading then being to make them two classes by confining to the intended purpose or its absence. ³⁴ It is also required that the buyer stipulate the desired quality and the seller agree in the contract, the buyer's circumstances not being a sufficient presumption for the stipulation since this quality is deserved in the contract by the condition not by the contract alone; yet the buyer's circumstances count in interpreting the quality where it was stipulated briefly, and in judging whether the quality found in the goods is better than the stipulated one so that his option lapses or below it, and if one buys a dog known as a hunter and it proves forgetful the option of quality stands for the buyer though he did not expressly stipulate the dog's being a hunter, because the outward case is that he bought it desiring this quality which became stipulated by implication; ranking with the buyer's stipulation is what comes from the seller crying over the goods at the sale that they are such and such, so they are returned for the absence of that quality, al-Dusuqi saying that a broker's customary puffery in the cry does not count where the custom was that they embellish such things, so there is no return on the apparent view for the absence of what he cried since the buyer entered on its absence. ⁴⁵ The conditions of the failure of the quality for the contract to remain valid and to entail the option are that the failure fall within the genus of the sold thing, for if one stipulated the garment cotton and it proves linen the contract is invalid for change of genus; and since the loss of a quality which changes the state of the goods from what was contracted is obscure, the jurists set it a criterion giving each case its rule among corruption, validity with the option, and validity without option: the criterion is the grossness or absence of disparity in purposes, by comparing the goods with the thing named in the contract and seeing the degree of difference, so if the goods are of the named thing's genus and the difference is in kind alone the option stands, while if the disparity is in genus the rule is corruption; Ibn al-Humam stated that what shows gross disparity between its purposes counts as genera and what does not is one genus, and he cited as genera among garments linen and cotton, and male with female, and of the difference of kind without genus buying meat as goat meat and it proves lamb meat and the reverse. ⁵ The limit of the loss is that if the buyer finds in the goods after taking them the least of what the name of the stipulated quality applies to he has no right of return, while if he finds none of the quality at all or only a slight deficient part not bearing the name he has the right of return; its example is stipulating of a dog in purchase that it be a hunting dog, the quality of hunting meaning its answering the call to pounce on game and obeying its sender's command so it returns when called or charges when urged — whenever this quality exists, even short of the ideal, he has no right of return, but if it does not hunt at all or hunts so deficiently it cannot be called a hunter he has the right of return; and it is further required that the lost stipulated quality not be a defect, the wordings of the jurists of the schools that affirm this option concurring that the intended quality should be such that its absence is not counted a defect, else the matter belongs to the option of defect. ⁵⁶ The effect of the option for a lost quality, when the stipulated quality proves lost fulfilling its conditions, is that the buyer has the right to return the goods or take them for the whole price without arsh for the lost quality; if return is barred for some reason the buyer recovers from the seller the share of the lost quality in the price by valuing the goods with that quality and without it and recovering the difference, while a transmission from Abu Hanifa gives no recovery because the option is established for the buyer by the condition not by the contract and a barred return in the option of stipulation gives no recourse on the seller, and likewise here — the sounder being the former transmission since the seller failed to deliver the quality of soundness as in a defect; as for the confinement of the option to return or taking at the whole price without letting the buyer recover the lost share except when return is barred, its reason is that the lost thing is a quality and qualities meet nothing of the price, being annexed in the contract and entering it without mention, so that had they been lost at the seller's hand before delivery nothing would be cut from the price. ⁶ The field of this option is that of the option of defect, namely that the contract be over a determinate object, so it does not stand in the unindividualised sold thing, the one established in the liability, for if it does not appear conforming to the quality it is not the sold thing, and likewise it does not stand in the unseen sold thing because that has an option of its own, the option of sight. ⁷ Its timing: the Hanafis and Hanbalis hold it stands deferred, not timed to a fixed period until something evidencing consent lapses it; the Malikis time it at a day or two; and at the Shafiis it is immediate, all of which accords with regarding the option for loss of the quality as the option of defect and building on it. ⁷ This option is inherited on the death of the entitled party and passes to his heirs because it lies within the ownership of the thing, as the Hanafis state, while the others have the transfer established in it and in its like among the options attached to the thing; and it lapses by whatever lapses the option of defect, whose detail is under the option of defect. ⁷