Option of det
er mina! ion.
It extends to
a choice out
o f three, but
not ouc of
III. Where the feller oppofes a particular price to each (lave,
but does not fpecify to which of them the condition of option
relates.— IV . Where the feller fpecifies the Have to whom the condition
ot option relates, but does not oppofe a fpecific price to each of
them.— In both thefe cafes the fale is invalid, becaufe of i the uncertainty
of the fubjeti of the fale in the one in fiance, and of the price
in the o/^er.
If a perfon purchafe one of two pieces of cloth for ten dirms, on
the condition of his being at liberty for three days to determine on the
particular piece which he may approve, fuch fale is valid; and the
condition fo flipulated is called an option o f determination *.— A fale is
in the fame manner valid, where a perfon purchafes, with a referve
of option, one' out of three pieces; but it is not lawful to purchafe in
that manner one out offour pieces.— What is here advanced proceeds
upon a favourable conftrudtion.— Analogy would fuggefl that, the fale is
not lawful in either of thefe three cafes ; becaufe the fubjedt of fale is
uncertain;— and fuch, alfo, is the opinion of Ziffer and Shafei._The
reafon for a more favourable conftrudlion is, that optional conditions
have been ordained for the benefit of man, in order that he may
thereby be enabled to fet afide the bad, and to chufe the good for
himfelf:— it is, moreover, evident that man Hands in need of contracts
of this nature, in order that he may be enabled to fhew the
merchandife to fome perfon in whofe judgment he confides; or, if an
agent be employed, that he may fhew it to his conflituent; and this
the feller would not permit him to do unlefs fuch a condition were
flipulated.— This fpecies of fale*, therefore, being in effedl the fame as
an optional one, it follows that it is in a fimilar manner lawful.— This
neceffity on the part of man, however, is fully anfwered by means of
three pieces, as this number comprehends the three qualities o f good,
bad,
* Arab. Khiâr-al-tayeen.
O b j e c t i o n .— Why then is it not lawful with refpecl to four
pieces, as in that cafe alfo no contention would take place ?
R e p l y .— Although, in this cafe alfo, there would be no uncertainty
with regard to the fubjedt of the fale, to occafion contention,
Hill the efficient caufe of the legality (namely, the neceffity of m a n )
does not here exifi; and it is therefore unlawful.
S o m e have obferved that, in a cafe of option o f determination, a
condition of option is alfo indifpenfable; and this is recorded in the
Jama Sagheer. Others again, (following the Jama Kabeer,) fay
that the condition of option is not requifite; and hence it is inferred
that what has been recorded in the Jama Sagheer is that fuch a condition
often takes place; not that it is abfolutely necejfary. It is to be
obferved, however, that if, in a fale flipulating an option of determination,
it ffiould not be thought neceffary to infert a condition of option,
the period for determining the choice muH in that cafe, according
to Haneefa,\>e. limited to three days: but according to the two dif-
ciplesit maybe fixed to whatever period they pleafe. It is alfo to be
obferved that in a cafe of option o f determination, the fubject of the fale
is one piece of cloth (for example), and the other piece is a depofit
in the hands of the purchafer * . If, therefore, one of the pieces be
lofi or fpoiled, the fale takes place with refpeft to it in exchange for
the fiipulated price ; and the other price is as a depoft; hecaufe it is
impoffible to rejedl the piece which is .loft or fpoiled. If, on the other
hand, both pieces be lofi at the fame time, the purchafer mu ft in that
cafe pay the half of the price of each, becaufe the determination of
* And confequently (according to the laws o f depofit) he is rdponfible iii cate o f accidents,
for one piece only.
V O L . II.
An option of
determination
may involve
a condition of
option :
but the term
for making
the determination
muft
not, at all
events,exceed
three days.
O f the articles
referred
to the pur-
chafer’s
choice, one is
the fubject of
the fale, and
the others are
as depofits:
E e e purchafe