Introduction

Khiyar al-Ta'yin, also known as the option of selection, is a principle in Islamic jurisprudence

(fiqh) that allows a party in a contract to choose whether to proceed with the contract or cancel it.

This option must be exercised before the contract is concluded or within a stipulated period after

the contract is made. Khiyar al-Ta'yin is based on the concept of ensuring fairness and justice in

contracts, allowing parties to protect their interests in case of unforeseen circumstances or

changes in circumstances.

Khiyar al-Ta'ayin provides flexibility and allows the parties involved to adjust the terms of the

contract according to their needs. It is based on the principles of fairness, mutual consent, and

transparency in Islamic commercial transactions.

MEANING OF KHIYAR AL TA'AYIN

Khiyar literally means option. Technically, khiyar is defined as a term used to express an

option to rescind a contract of sale by either party within a certain period after the

conclusion of a bargain.

Khiyar Ta’yin, meaning the suffrage for the buyer in determining different goods when

there are several types of object of selling and buying and the seller asks the buyer to

choose the most preferred item.

According to al ta'yin

Al-Tayin, khiyar can be defined as one of the parties therefore reserves the option to choose,

designate from among several objects, the true object of that contract during prefixed term. There
are two possible decisions which are to ratify by choosing from among the alternative objects, or

to cancel the contract entirely.

The 2 Possible Decision:

(i)To ratify by choosing from among the alternative objects; or

(ii) To cancel the contract entirely

Conditions of Khiyar al-Ta'yin:

1. This option is applicable in commutative contract (unchanged of quantities) for valuable

consideration and in which property is transferred. It is therefore restricted to the contract of sale,

barter, give and trust.

2. Choice of determination may only be exercised between a maximum of

3. object which have three qualities, good, medium and bad3.If the object were less or more than

3, the contract will be voidable on the ground of ‘Gharar’ ( uncertainty)

4. This option only applicable to the parties of the contract only and not to the third party it is for

the purpose to avoid in justice among the parties of the contract

5. Option of determination must expressly stipulate in the contract which means that both of

them knew that they have the option to choose the subject matter of the contract. If not, the seller

must inform the buyer.6.Hanafisrequire that the object which the choice is made must be all the

same class but must different quality or kind for the option to be of any consequences.
Offer and Acceptance: The contract must have been accepted by both parties, but the option must

be exercised before the contract is finalized. This means that once the contract is fully agreed

upon by both parties, the option is no longer available.

Stipulated Period: The option must be exercised within a stipulated period, or if no period is

specified, then it should be exercised promptly after the contract is concluded. This period is

generally considered to be a reasonable amount of time to allow for the parties to assess the

contract and make a decision.

Reasonable Cause: There must be a reasonable cause for invoking the option, such as a defect in

the subject matter of the contract or a change in circumstances that affects the contract's validity

or performance. The reason for invoking the option should be genuine and not based on mere

whim or caprice.

Juristic Opinion:

Islamic jurists have differing opinions on the exact conditions and scope of Khiyar al-Ta'yin.

Some scholars argue that the option should be available only for specific reasons, such as defects

in the subject matter, while others believe it can be invoked for any reason as long as it is done in

good faith and not to harm the other party. Overall, the purpose of Khiyar al-Ta'yin is to ensure

fairness and justice in contracts, allowing parties to protect their interests in a reasonable manner.

• Duration of this option according to the nature of the transaction. Imam Abu Hanifa mainta in

that period of this khiyar At-ta’yin same as khiyar alsyakk which is 3 days. However duration of

option must be precisely defined by contracting parties.

• Syafie and Hanbalis do not recognize this option. They are in the opinion that if the subject

matter of the contract is not determined sufficiently then it is not confirming the basic principle

of Islamic Transaction. They also argued that there is no authority on Hadith about KhiyarAt-

Ta’yin

• Hanafi and Maliki approved Khiyarat- Ta’yin on the basis of Istihsan and affirmed that the

optionhas been introduce to prevent any damage.

Quran and Hadith Opinions

In Islamic jurisprudence, the Quran and Hadith (sayings and actions of the Prophet Muhammad)

are foundational sources for understanding legal principles, including Khiyar al-Ta'yin (the

option of selection). While the Quran does not explicitly mention Khiyar al-Ta'yin by name, its

principles align with the Quranic emphasis on justice, fairness, and fulfilling contractual

obligations.

Quranic Perspective: The Quran emphasizes justice and fairness in all dealings, including

contracts. Surah Al-Baqarah (2:282) mentions the importance of writing down contracts and

having witnesses, which indirectly supports the idea of allowing parties to protect their interests

through mechanisms like Khiyar al-Ta'yin.

Hadith Perspective: The Hadith literature contains several narrations that support the concept of

Khiyar al-Ta'yin:

In a Hadith narrated by Abdullah ibn Umar, the Prophet Muhammad said, "The conditions which

most deserve to be fulfilled are those by means of which intimacy becomes permissible for you."
This indicates the importance of fulfilling the conditions of a contract, including any options that

may have been agreed upon (Sahih al-Bukhari).

Another Hadith narrated by Ibn Abbas mentions that the Prophet Muhammad allowed the option

of annulment in a marriage contract if one of the spouses was found to have a defect that was not

initially apparent (Sunan Abu Dawood).

These Hadiths demonstrate the Prophet's recognition of the need for flexibility in contracts to

ensure fairness and justice.

1. Qur'an 4:29: "O you who have believed, do not consume one another's wealth unjustly

but only [in lawful] business by mutual consent." This verse emphasizes the importance

of mutual consent in business transactions, which is the basis of Khiyar al-Ta'ayin.

َ ‫‌ٰۤي ـَاُّيَها اَّلِذ ۡي َن ٰا َم ُنۡو ا اَل َتۡا ُك ُلۤۡو ا َاۡم َو اَلـُك ۡم َبۡي َنُك ۡم ِباۡل َباِط ِل ِاۤاَّل َاۡن َتُك ۡو َن ِتَج اَر ًة َع ۡن َت َر اٍض ِّم ۡن ُك ۡم‬ ‫َو اَل َتۡق ُتُل ۤۡو ا َاۡن ـُفَس ُك ۡمؕ‌ ِاَّن َهّٰللا َك اَن ِبُك ۡم‬

‫َر ِح ۡي ًم ا‬

O ye who believe! Squander not your wealth among yourselves in vanity, except it be a trade by

mutual consent, and kill not one another. Lo! Allah is ever Merciful unto you.

2. Hadith - Sahih al-Bukhari 2077: "The Prophet (‫ )ﷺ‬said, 'The buyer and the seller

have the option of canceling or confirming the bargain unless they separate, and if they

spoke the truth and made clear the defects of the goods, then they would be blessed in

their bargain, and if they told lies and hid some facts, their bargain would be deprived of

Allah's blessings.'" This Hadith underscores the importance of honesty and transparency

in business transactions, which is relevant to Khiyar al-Ta'ayin.

 3. Hadith - Sahih Muslim 1537b: "Ibn Abbas (Allah be pleased with them) reported that

Allah's Apostle (‫ )ﷺ‬came to Medina and the people had been grafting the trees. He

said: What are you doing? They said: We are grafting them, whereupon he said: It may

perhaps be good for you if you do not do that, so they abandoned this practice (and the

date-palms) began to yield less fruit. They made a mention of it (to the Holy Prophet),

whereupon he said: I am a human being, so when I command you about a thing

pertaining to religion, do accept it, and when I command you about a thing out of my

personal opinion, keep it in mind that I am a human being." While this hadith is not

directly related to Khiyar al-Ta'ayin, it highlights the importance of seeking guidance

from the Prophet Muhammad (‫ )ﷺ‬in matters of religious significance, which would

include contractual matters like Khiyar al-Ta'ayin.

Termination of Khiyar al-Ta'yin:

Expiration of the Stipulated Period: If the option is not exercised within the stipulated period, it

expires, and the contract becomes binding.

Acceptance or Rejection of the Option: Once the option is exercised by either party, the contract

is either cancelled (if the option is invoked) or remains binding (if the option is not invoked).

Completion of the Contract: If the contract is fully performed by both parties, the option is no

longer available.

• The parties have the option to choose the object of sale out of multiple varieties of a given

article.
• The purpose of this Khiyar is to give wide choice to the buyer to choose and the seller to

stipulate the subject matter of the contract.

• For example the parties may purchase one out of three varieties of commodities of different

qualities (excellent, average and poor) without specifying which particular varieties would be

purchased on the condition that those the subject matter from the same class but different

qualities and different price.

• For example the object were car and have three types, Audi, Perdana V6, and Dutson also have

different qualities and different price. In this situation, the seller have the option to determine the

object, price and the qualities of the subject matter of the contract itself.

• This option only applicable to the parties of the contract only in a stipulated time.

• This option cannot be stipulated by the third parties. However, some scholar in the opinion that

this option only applicable to the buyer only.

Termination of the contract

 There are various reasons and ways that termination happens in the contract.

 They include

 i) Rescission (faskh),

 ii) death and

 iii) non-approval of suspended contract.

1. Rescission ( faskh )

 Rescission is possible due the following reasons.

 a) Invalidity of contract – It arises due to nonfulfillment of the required conditions of the

contract such as the subject matter of contract is unknown and not existed. The contracting

parties or court may rescind the contract provided that the subject matter is not yet being

disposed of. If this happens, the offeree may claim compensation for the value of subject

matter.

 b) Right of option – It happens after a party to the contract exercised his right of option

to rescind the contract.

 c) Mutual rescission (Iqlah) – It occurs when all the contracting parties agree to end

their contract amicably. Islamic law encourages such act on the basis of the hadith,

“Whosoever mutually agrees to rescind his contract, Allah regards his offence as undone in

the Day of Judgment.”

 d) Frustration – It exists due to happening of natural catastrophe such as flood, draught,

volcano and the likes that causes the inability of the contracting parties to carried out their

obligations of the contract according

e) Lapse/expiration of time – It comes into existence for the contracts that may be

constituted for certain period of time. Such contracts include contract of hire, borrowing,

bequest, partnership and the likes.

f) Accomplishment of work/objective – It arises

for certain types of contract such as i) contract of guarantee and mortgage [payment of

debt made by the principal debtor to the creditor], and ii) agency and hire of person [agent

or employee has done all the required jobs]

2. Death
 Death terminates certain types of contract.

 a) Contract of Hire – Death of either the lessor or lessee terminates the contract

according to Hanafis.

 b) Contract of Mortgage and Guarantee – Death of the mortgagor, guarantor or

guaranteed person causes termination of such contracts.

 c) Contract of Partnership and Agency – Partner, agent or principal died in such

contracts make them cease to exit.

 d) Contract of Share-cropping and Irrigation – death of one of the contracting parties

resulting such contracts terminate

3. Non approval

 Suspended contract refers to “a contract that its validity is subject to

approval/ratification of another person.”

 Sha•fi„is – it is void contract as elements and conditions of a valid contract are missing.

 Hanafis – it is a voidable contract that is subject to removal of certain restriction for it to

be valid.

 Malikis – it is generally regarded as a valid contract that depends upon the permission

and authorisation of another person. If the permission is given then the contract becomes

valid and effective.

 It consists of i) contract of discerned child [subject to ratification by the guardian],

ii)contract of compeller [subject to ratification by the victim], iii) contract of interdicted

spendthrift/prodigal [subject to the endorsement of court/judge] , iv) contract of

overspending debtor [subject to permission from the creditors], v) gratuitous contract of

death sickness person [subject to consent of co-legal heirs], vi) contract of unauthorised

agent [subject to permission from the actual owner of the subject matter of contract], vii)

contract of an apostate [subject to reacceptance of Islam].

 Such contracts become terminated if the parties concerned do not approve the contracts

respectively.

Conclusion

• The Options are another alternative which couldassist in ensuring the fairness in trade.

• It also ensures the contracting parties to havetransactions which are in line with the Shariah

• The right of Options has also been adopted inthe modern financial transactions

Overall, while Khiyar al-Ta'yin is not explicitly mentioned in the Quran, its principles align with

the Quranic emphasis on justice and fairness in contracts. The Hadith literature provides

examples of the Prophet Muhammad recognizing and allowing for similar options in contracts,

indicating the compatibility of Khiyar al-Ta'yin with Islamic legal principles.