Lesson 2

Iqalat
The Rulings Related to Iqalat:

Rescission is setting aside and stopping a contract of sale. (M: 163)

Ikhtiyar: It is a need and the Prophet permitted it; man aqaal nadiman

[a] With mutual agreement [b] offer and acceptance and [c] at the original price.

Cannot be demanded

What is due is the sale price. Specifying a higher or lower cancellation price is invalid.

This is the position of Abu Hanifa.

His companions disagreed.

Consequences?

.
The Item of Sale is the maqsud; Price only a means.

Ikhtiyar: Because the maintenance of the sale is a prerequisite for rescission and the
sale is maintained as long as the item of sale remains.

Options (Khiyarat)

An option is the right to cancel the contract.

May be entailed by the contract or specified in it.

o
Remember that the basis of the contract though is that it is binding due to its entailing
a transfer of ownership with mutual agreement.

This option gives one the right to cancel the contract.

Must be specified.

o
The vendor, or the purchaser, or both, may insert a condition in the contract of sale
giving them an option, within a fixed period, to cancel the sale or to ratify it by carrying out the
term thereof (M: 300)

The specification must be for a known period of time through mutual agreement. It can
be specified after the contract also.

Abu Hanifa permitted it for 3 days or less. This is the relied-upon position of the school
and closer to the schools methodology.

Contracts can be adjusted by mutual agreement.

Abu Yusuf and Muhammad permitted it for a longer period, as long as the period is
known. This is the fatwa position.

Note: The three circumstances when Abu Hanifas opinion can be left.

An example of a changing of fatawa with the changing of times.

Ikhtiyar: Meaning, with his knowledge.

Both cancellation and ratification of the contract may be by word of mouth or by conduct.

(M: 302)

Words importing ratification are words implying satisfaction, such as, I ratify, or I am
pleased. Words importing cancellation are words implying dissatisfaction such as, I have
cancelled or, I have gone back. (M: 303)

Acts importing ratification are those acts implying satisfaction and acts importing
cancellation are those acts implying dissatisfaction.(M: 304)

This relates to khiyar al-wasf (option of misdescription).

If the vendor sells property as possessing a certain desirable quality and such
property proves to be devoid of such quality, the purchaser has the option of either cancelling
the sale, or of accepting the thing sold for the whole of the fixed price. This is called option for
misdescription. (M: 310)

If the purchaser having an option for misdescription deals with the thing sold in
manner indicative of a right of ownership over such thing, he loses his option thereby. (M: 312)

The price cannot be decreased except by mutual agreement.

When the seller alone has the option the buyers taking possession of the item and the
item perishing in his hands necessitates the market price.

Buyers option:

Abu Hanifa: Does not enter the property or ownership of the buyer.

Two Companions: Does enter into his ownership.

o
Majalla chose the latter: If the purchaser alone has an option he acquires a title in the
thing sold, which is considered to be a part of his own property. If the thing sold is destroyed
while in the possession of the purchaser after delivery thereof, the fixed price must be paid.
(M: 309)

If the item perishes in the hands of the buyer what is due is the sale price.

Such as a representative.

Ikhtiyar: Permitted due to juridical preference.

Ikhtiyar: Also mentions when the representative and the one being represented
conflict. E.g. One accepts the contractual offer and another rejects it.

Ratification can be implicit or explicit as taken before.

Ikhtiyar: [a] clear isqat [b] implicit isqat [c] other (like death).