Cases Wherein an Individual may cancel a Transaction
2152. The right of cancelling a transaction is known as khiy¡r (option). A buyer or seller reserves the right to cancel a transaction in one of the following eleven cases:
1. The buyer and seller have not departed from each other’s presence, even though they may have concluded formal negotiations. This option is known as khiy¡r al-majlis, the option of a meeting.
2. One of the parties in the transaction has been cheated, be it in a sale or otherwise, and this option is known as khiy¡r al-ghabn ({^Ghabn in a transaction occurs when the agreed price of a commodity is substantially different from its actual value, in a manner that it would not be disregarded in the common sense. (editor)^}) , the option of fraud.
3. The parties stipulate within the contract that one or both parties reserve the right to cancel the transaction within a certain period. This option is known as khiy¡r al-shar§, the option of condition.
4. One the parties embellishes the merchandise to look better than what it truly is, and does it in a manner that causes the value of the merchandize to appreciate in the eyes of the people. This is known as khiy¡r al-tadlis, the option of embellishment.
5. One of the parties within the transaction stipulates that the other party renders a service, and that condition is not fulfilled, or stipulates that the corporeal property, and not one that has been abstractly defined, possesses certain specifications, and it does not possess those specifications. In both these cases, the stipulator reserves the right to cancel the transaction. This is known as khiy¡r takhalluf al-shar§, the option of a breach of condition.
6. There is a defect in the commodity or its payment, and this is known as khiy¡r al-‘ayb, the option of defect.
7. It is later discovered that part of the commodity that was transacted belonged to a third party. In this case, if the owner does not consent to the transaction, the other party may cancel the transaction, or take back what he gave in return for that amount, should he have already paid for it. This can take two forms:
a. The amount (owned by the third party) is an abstract fraction of the whole. This is an instance of khiy¡r al-shirkah, the option of partnership.
b. The amount is a corporeally segmented portion of the whole. This is an instance of khiy¡r taba‘u¤i al-¥afaqah, the option of a segmented transaction.
8. The owner of the property described the specifications of the property that is corporeal and not abstractly defined, which the other has not seen, but later realizes that the property is not as it was described to be. In this case, the other party reserves the right to cancel the transaction, and this is known as khiy¡r al-ru‘yah, the option of physical observation.
9. The buyer fails to hand over the payment for the purchased commodity within three days, and no delay of payment has been stipulated within the contract. In this case, if the seller has not yet handed over the commodity, he reserves the right to cancel the transaction.
However, if it is a commodity that would get spoilt if it stays for one day, like certain fruits, the seller reserves the right to cancel the transaction should the buyer fail to pay for it till nightfall, and has neither stipulated a delay of payment in the contract. This option is known as khiy¡r al-ta‘khir, the option of delay.
10. A person has bought an animal, in which case he reserves the right to cancel the transaction within three days. If in return for selling something, the seller acquires an animal, he too reserves the right to cancel the transaction within three days of the sale. This is known as khiy¡r al-¦ayw¡n, the option of animals.
11. The seller is unable to hand over the commodity that he sold. For example, the horse that he sold runs away, in which case the buyer reserves the right to cancel the transaction, and this is known as [khiy¡r ta’athuri al-taslim] the option of annulling the contract due to being unable to receive the item, or one may call it: the option of difficulty in submission.
2153. If the buyer is ignorant of the price, or becomes heedless of it during the transaction and buys it for a price that is higher than its usual price, then given that he buys it for a substantially inflated price that people would take note of the difference and would not disregard it, he will reserve the right to cancel the transaction.
Similarly, if the seller is ignorant of the commodity’s price, or becomes heedless of it during the transaction and sells it for a price that is lower than its usual price, then given that he sells it for a substantially deflated price that people would take note of the difference and would not disregard it, the seller will reserve the right to cancel the transaction.
2154. In a transaction involving a conditional sale, wherein—for example—a house valued at $400,000 is sold for $200,000 with the clause that should the seller return the money within the stipulated period, he will reserve the right to cancel the transaction, the transaction will be valid provided the buyer and the seller both have the intention of carrying out the transaction.
2155. In a transaction involving a conditional sale, even if the seller feels assured that should he fail to return the money within the stipulated period, the buyer will give his property back to him, the transaction will remain valid. However, if he fails to return the money within the stipulated period, the seller does not have the right to demand the property from the buyer. As such, if the buyer dies after the stipulated period elapses, the seller cannot demand the property back from his inheritors.
2156. If—for example—a person mixes high grade tea with low grade tea, and sells it under the label of high grade tea, and the buyer is not aware of it, he may cancel the transaction.
2157. It a transaction pertains to a corporeal property, and not one that is abstractly defined, and the buyer realizes that the property is defective, such as an animal which is blind in one eye, then given that the defect was present in the property before the transaction, which the buyer was unaware of, he may cancel the transaction and return the property to the seller. However, if returning it is not possible, such as a case wherein the property has undergone some change, or has been utilized in a manner that it cannot be returned, then the difference between the price of the defective property and a sound one should be determined, and in proportion to the difference between the two, he may take back a portion of the price that he paid to the seller.
For example, if he realizes that the property that he bought for $4 is defective, then given that the value of a sound form of that property is $8 and a defective one is $6, then since the price of the defective property is 3/4th of the sound one, he may take back 1/4th of the price that he paid to the seller, which is $1 in this case.
2158. If the seller comes to realize that there is a defect in the corporeal particularized item that he acquired in return for selling the commodity, then given that the defect was present in it before the transaction was carried out, which he was unaware of, he reserves the right to cancel the transaction and return it to its owner. If however he is unable to return it due to a change in it, or a utilization which renders it non-returnable, he may claim back the difference between a sound and defective form of the item in the manner that was described in the previous article.
2159. If a defect develops in the commodity after the transaction but before it is handed over, they buyer can cancel the transaction. Similarly, if a defect develops in the item that is given in return, after the transaction but before it is handed over, the seller can cancel the transaction. However, if they wish to take the difference in the price, it is not permissible.
2160. If a person realizes that an item has a defect after the transaction is carried out, he does not have to cancel the transaction immediately. He also reserves the right to cancel the transaction later on, although the more precautionary measure is that he should not delay in doing so.
2161. If at any time after the transaction a person comes to realize that the commodity has a defect, he can cancel the transaction even if the seller is not willing to accept it. The same applies to the rest of the khiy¡rs.
2162. In the following four cases, a buyer cannot cancel a transaction due to a defect in the property, nor demand the difference in the price:
1. He is aware of the defect at the time of the transaction.
2. He is content with the defect in the property.
3. He states at the time of the transaction, “Even if the commodity has any defects, I will not return it, nor take the difference in the price.”
4. The seller states at the time of the transaction, “I am selling this commodity with all the defects that it contains.” However, if he specifies a particular defect, saying, “I am selling the property which has this particular defect,” and later it is discovered that it has another defect, the buyer can return the commodity owing to the defect that was not specified by the seller. In the event that he is unable to return it, he can take the difference in the price.
2163. In the following cases, a person who is given a defective property cannot cancel the transaction owing to the defect, and may only claim the difference in the price:
1. In the event that the property itself has perished
2. In the event that he ceases to own it, as is the case when it is sold or gifted to someone else, or any similar transfer.
3. In the event that the property undergoes a change, such as a cloth which has been cut or dyed.
4. In the event that he has not ceased to own it, but has carried out a transaction involving that property, such as the case wherein he has rented it out or mortgaged it.
5. In the event that the commodity develops a defect after it is handed over. However, if the transacted item is a defective animal, and it develops another defect prior to the passage of three days, he may cancel the transaction even if he has taken possession of it, owing to the right of cancellation that stems from khiy¡r al-¦ayw¡n, the option of animals. The same will apply if he reserves the right of cancellation due to a condition (within the contract).
2164. If a person owns a property that he himself has not seen, and its details have been described to him by another person, then should he describe the same details to a prospective buyer, and sell it to him, only to realize later on that it was in fact better than what he had described, he will reserve the right to cancel the transaction.
