The choice in the transaction place: A comparative study of the scholars’ evidences on its legislation

Prepared by the researcher :  Dr. Shahlaa Ridha Mahdi – Karbala University

Democratic Arab Center

Journal of cultural linguistic and artistic studies : Twenty-seventh Issue – March 2023

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin

:To download the pdf version of the research papers, please visit the following link

https://democraticac.de/wp-content/uploads/2023/03/%D9%85%D8%AC%D9%84%D8%A9-%D8%A7%D9%84%D8%AF%D8%B1%D8%A7%D8%B3%D8%A7%D8%AA-%D8%A7%D9%84%D8%AB%D9%82%D8%A7%D9%81%D9%8A%D8%A9-%D9%88%D8%A7%D9%84%D9%84%D8%BA%D9%88%D9%8A%D8%A9-%D9%88%D8%A7%D9%84%D9%81%D9%86%D9%8A%D8%A9-%D8%A7%D9%84%D8%B9%D8%AF%D8%AF-%D8%A7%D9%84%D8%B3%D8%A7%D8%A8%D8%B9-%D9%88%D8%A7%D9%84%D8%B9%D8%B4%D8%B1%D9%88%D9%86-%D8%A2%D8%B0%D8%A7%D8%B1-%E2%80%93-%D9%85%D8%A7%D8%B1%D8%B3-2023.pdf

Abstract

This research revolves around the meaning of choice in transaction place. The research also presents the differences among scholars regarding whether or not to prove the choice in transaction place, with the evidence of those who say that it is proven or not, and presents the statements contained in the matter and the number of objections to it, and then discusses them . The study investigated some verses, and hadiths as well as the saying of many Muslim scholars associated with the choice at the transaction place. The study concluded that the council refers to the absolute place of the contract. Furthermore, the choice at the transaction place is achieved if the two people deal with standing without sitting down. Finally, the study concluded that evidences indicate that the choice at transaction place is proven, and the wisdom of its legislation is to stabilize transactions.

Introduction

Choice in transaction place

Choice in language is defined as taking what is beneficial and good, selecting what is best (Al-Zubaidi, 1987). So choosing something has a  sense of seeking good and taking what a person sees as righteous and good, so it is a title for the external action, similar to eating, for example, just as it is a title for the external action, so is choice, because it signifies taking what is good and righteous. This denotative meaning of choice relates to actions, so it is said that a person chose this action from among the actions due to what it includes of interest. Choice can also be attached to the inanimate objects, so it is said that a person chose this person from among the people in what he took, since what he took for him included interest and goodness.

Furthermore, choice in this sense also corresponds to compulsion and resorting, and accordingly, it does not stand for the paralyzed as he has the choice in walking, nor it refers to normal human like us to have the choice to fly, due to the inability of the paralyzed to walk, or to our inability to fly. Yet it is invalid for the paralyzed to choose to walk nor we do fly in the sense of taking it for good. or interest (Al-Gharawi, 2019).

However, what the theologians mentioned regarding the interpretation of choice by ability is contrary to the linguistic meaning and can be directed in one of two ways:

• This is just a special term for them, and there is no dispute in the terminology.
• They look at the formula of the chosen one.

Clarification: The derivative is sometimes used in the act of the principle, as in the example of the word knowledge, and at other times it is used in the possibility or necessity, and the subject is entangled with it after that, not that it is actually entangled with it, as it is said:

A cutting sword, although it is in its sheath, or a deadly poison, although no one drank it. The sword has the ability to cut and one of its characteristic and that poison is capable and requires killing when drinking.

In this regard, the chooser formula means that a person has free will, if he wants to choose to leave, then he leaves, and if he wants to choose the action, then he does, because he really chooses an action.  In other words, the person is able to choose action and abandonment, so what the speakers have mentioned about choosing is in the sense of ability. They looked at the example of the formula of the chooser, which means that there is a requirement for choice, i.e. capable and able to choose, not that choice means ability.

As for terminology, the choice has been defined by aspects, we limit ourselves to two of them:

1- The lawful choice of rescinding the contract

The investigators in this definition explained the difference between giving alternatives – in the transaction place choice – and the option, and that the choice of rescission and signature is dependent on the knowledge of the proof of this right in the sale. As for the option, it is the property of rescinding the contract, and therefore it occurs to the heir with the death of the one to whom this transaction place choice is established (Al-Hilli, 2021). In any case, the Greatest Shaykh mentioned that the choice is neither inclusive nor objectionable, for two reasons:

Firstly: The exit of the fixed option in the resource of the interdicted is like the fool and the insane, since they have no power over the termination of the contract.

Second: the inclusion of resources in the definition, although it is not a choice of terminology, which is meant:

• The right of annulment invalid contracts.
• The property of the heir in the curious contract.
• The right of the heir is to return the contract to what exceeds one third.
• The right of the paternal aunt and uncle to terminate the contract on the niece.
• The right of each of the spouses for the annulment the marriage contract due to defects (Al-Ansari, 1420(. There are two attempts to get rid of the previous violations.

The first attempt: What was referred to by the Great Sheikh: (Perhaps the expression “the right”) is to warn that the choice is one of the rights and not from the rulings, so what was like permission and rejection of the curious contract and domination over the annulment of unjust contracts comes out, because that is from the legal rulings and not from rights, therefore, are not inherited, and they are not forfeited by omission )Al-Ansari,1420 AH).

It can be clarified in the sense that, the choice is a one of the rights with evidence of its ability to forfeit or transfer by inheritance. Some contradictions will emerge, such as the permission of the Fuzuli and the domination of the annulment in the permissible contracts. Hence, the permissibility in permissible contracts is judgmental in the hands of the legislator, unlike the ownership of the annulment of the permissible contracts. The same is the case in the permission of the aunt. Since the contract for the daughter of the brother or sister is Fuzuli, and the permission of Fuzuli is a legal ruling. Yes, this attempt does not remove all the violations, as is clear.

The second attempt: The choice stands for is what was related to annulment and leaving of the contract. A valid contract must be achieved before the option so that it is correct to say that he is able and possesses the annulment and leaving it

Therefore, it becomes clear that the release of the choice in the Fuzuli sale and in the marriage of the daughter of the wife’s sister or her brother’s daughter is not in the meaning of the term.

In the Fuzuli sale the contract is based on itself and corrected by its approval, and the contract is canceled from the possibility of relying on its return. So, there is no valid contract before the approval until he has the right to annul it or leave it. On the contrary, the permissible contracts, the Fuzuali  has power to dissolve the contract and leave it, and he has no power to remove that authority related to the annulment (Al-Gharawi, 2019).

Choice: The right of approving or annulling  sale contract (Al-Sayuri, 1408 AH, 2/43).

The greatest Sheikh commented that what is meant by approving the contract is either to keep it as it is by leaving out annulment, or to make it a binding contract that is not subject to annulment..

In the former, he reconsidered the sufficiency of the saying (a right to remove it). He mentioned the approval of the contract and keeping it as it is, because whoever possesses the removal, has the right to keep it as it is.

The later part of the definition referred to forfeiting the right of choice, because making the contract irrevocable is not achieved except by forfeiting the right of choice, so the same is not taken in defining the same choice (Al-Ansari, 1420 AH, 6/12).

The second: Contracts are obligatory

The aforementioned basis is inferred by a number of verses and narrations, to which we refer briefly:

1- The Almighty says: “Fulfill the contracts” (Al Maeda: 1) and inference  it depends on the completeness of two premises:

Premise 1: Loyalty means the obligation to follow the requirements of the contract, and what is required in the sale contract is the buyer’s ownership of the appraiser.

Premise II: What is required by the release of obligation is the sanctity of the actions that occur after the dissolution of the act without the consent of its owner.

The Almighty saying: ((God has permitted trading..))( Al-Baqara 2:275) and this is indicated by the aforementioned clarification:

Premise 1: God has permitted all disposals of the appraiser, any of the disposals, such as a sale or a gift.

The second premise: the continuation of the permissiveness of all dispositions, including those that occur after the termination of one of the transactions without the consent of the other.

The Almight says: ((..trade by mutual consent..)) (Al -Nisa, 29) with the same approximation as above.

The Prophet (PBUH) said (It is not lawful for a Muslim’s money except with his own good will)) (Al-Ahsa’i, 1985: Hadith: 318). Likewise, the method of inference is the same as the aforementioned method in Allah’s words: ((fulfill the contracts)) ( Al-Ma’idah: 1).

-The prophet (PBUH) said: ((People are overwhelmed by their money)) (Al-Ahsa’i, 1985: Hadith: 9) with approximation of three introductions:

1- The condition is generally mentioned within the contract or primary.

2- It indicates the condition, as the declarative sentence refers to its obligatory.

It is obligatory for the condition not limited to the absence of one of the two parties, as it is absolute.

Third: Is the choice at transaction place devotional or has intellectual based

The fixed choice in selling is divided into three parts in terms:

First category

What was proven in the sale of a special evidence without the requirement of the rule, as is the case in the choice in transaction place to sell the animal or to delay, for it is like the choice of the transaction place, for example, if two people pledged allegiance to each of them, the option as long as the transaction place requirement for the special evidence for that. Otherwise, the jurisprudential rule does not require its confirmation. The same is the matter in the choice in selling animals, as the narratives indicate its firmness for three days, and the rule does not require that, and so is the case in the choice of delay. Whoever bought something and did not receive it and put it at hand over the price, the seller should wait three days for the private accounts of the that, the jurisprudential rule does not stipulate that though.

Second category

What was among the options proved in the sale according to the rule without the indication of a special evidence, as in the choice of failing the condition, and the option of unfairness. For in the option of defaulting on the condition, whoever stipulates a specific thing and the condition fails, the choice is established for him, what is referred into is nothing but a  rule (Muslims adhere to their conditions), otherwise, there is no jurisprudential rule indicating that the option is proven when the condition is defaulted.

Likewise, the same is in the option of unfairness, because the one who perceives it is confined and is left behind by the implied condition. Every sane person at the time of the transaction stipulates for himself not to be unfair, and according to the assessment of the injustice he has the choice, and for the sake of this implicit condition, the option of injustice is proven.

Third category

This option was is implicated to the rule and the specific evidence, as is the case with the option of the defect. If the narrations indicate that it is proven in the sale and regardless of it, the rule suffices us, because each one of the sale parties has stipulated for himself to validate compensation, and if the sale showed defect, one of the party has the choice to cease the transaction. For the absence of the implied condition, the option of the defect is established without the need for a special jurisprudential provision.

The same is the condition of the option to refund the price, as if the buyer says to the seller: Whenever you return the price to me within a year, for example, you have the right to cancel the sale and claim the property, because the narrations have indicated that this is permissible, and regardless of it narration, the jurisprudential rule suffices us. It is assumed that the two parties stipulated the option when returning the price, and for the sake of the rule: (Muslims adhere to their conditions), the choice is proven without the need for a jurisprudential text.

The fruit resulting from this division is that the choice at transaction place is specific to the sale and cannot be transgressed to the rest of the exchanges, because the devotional matter is limited to the amount to be worshiped and it is not possible to transgress the idea of stripping the text of privacy, as is clear.

Section 2:

Evidences of those who prove the choice of transactional place or not

There has been a disagreement among the scholars regarding the validity or not of the choice at the transactional place, based on two sayings:

1- The Imamiyyah went to prove the choice in the transactional place; yet it is one of the necessities of their jurisprudence (Al-Amili, 1419). A group of companions agreed with Imamiyyah in their opinions, including Abdullah bin Omar, Abdullah bin Abbas, Abu Hurairah, Abu Barza Al-Aslami. Still some followers agreed with them including Al-Hassan Al-Basri, Saeed bin Musayyib, Al-Zuhri, and Ataa, and among the jurists: Al-Awza’i, Ahmed bin Hanbal, and Al-Shafi’i (Sahih Muslim, 2021).

• 2A group of Muslim scholars went to the non-establishment of them: Malik bin Anas (1323) and Abu Hanifa (Shaarani, 1940), and most of the Zaidis.

Evidences of scholars who prove the lawfulness of choice at the transaction place

First – the consensus that has been repeatedly transmitted in the fiqh books.

The consensus is not devotional, revealing the opinion of the infallible, but rather it is perceptive, so the value belongs to consensus, not to an individual person.

Second: Extensive texts

Muhammad bin Yaqoub, on the authority of Abu Ali Al-Ash’ari, on the authority of Muhammad bin Muslim, on the authority of Al-Sadiq, who said: The Messenger of God said: (The two sellers have an option until they part, and the owner of the animal has an option for three days), (Al-Kulayni, 1388 AH). The narration is authentic in its chain of narrators, due to the trustworthiness of all the members of the chain of narrators, (Abi Ali Al-Ash’ari Al-Qummi, was trustworthy, a jurist among our companions, a lot of hadeeth, authentic narration (Al-Najashi, 2013, p. 92). Likewise,  Muhammad ibn Abd al-Jabbar is the son of Abi al-Sahban, a trustworthy person )Rijal Altuwsi, p. 391).

Al-Ala bin Razin is also trustworthy. Al-Najashi (2013) said about him: “He accompanied Muhammad bin Muslim and taught him understanding, and he was trustworthy and prominent” (pp. 223-224). Muhammad bin Muslim, trustworthy, Al-Najashi said about him “…and he was one of the most trustworthy people” (p. 298).

• What al-Kulayni narrated on the authority of Ali ibn Ibrahim on the authority of his father on the authority of Ibn Abi Umayr on the authority of Jamil and Ibn Bakir, all together on the authority of Zurara on the authority of Abi Abdullah al-Sadiq who said I heard him say: The Messenger of God (PBUH) said: “Two sellers have the choice until they apart.” (Al-Kulayni, 1388 AH, 170/4). This narration is authentic, due to the reliability of all the members of its chain of transmission, except for what is said about Ibrahim bin Hashim regarding the occurrence of praise in his right without the documentation. But, he is reliable for the followings:
• The consensus claimed agreed on Ibn Tawus’s trustworthiness, and his trustworthiness was revealed with some of the ancients (Ibn Tawus, 1965).
• That his son, Ali Ibn Ibrahim, narrated a lot from him in the interpretation, and he mentioned in the introduction to his book that he only narrated on the authority of trustworthy (Al-Kulayni, 1388 AH; Al-Qummi, 1967).
• He narrated the attribution of anecdotes of wisdom.
• He was the first to publish the hadith of the Kufis in Qom.

3. What Muhammad bin Yaqoub narrated, on the authority of Muhammad bin Yahya, on the authority of Ahmed bin Muhammad, on the authority of Abi Mahboub, on the authority of Fadil, on the authority of Al-Sadiq in a hadith – he said: I asked him: What is the condition of selling other than animals? He said: “The two sellers by choice as long as they are not separated, and if they are separated, then there is no choice after they were satisfied with it (Al-Kulayni, 1388 AH, 170/6). Al-Saduq has narrated this Hadith in Al-Khisal on the authority of his father, on the authority of Saad bin Abdullah, on the authority of Ahmed bin Muhammad bin Isa, on the authority of Al-Hassan bin Mahboub, on the authority of Jamil bin Daraj, on the authority of Al-Fudail bin Yasar (Al-Saduq, 2012)

This Hadith was narrated by sheikh with his chain of transmission on the authority of Al-Hasan bin Mahboub (Al-Tusi, 1394 AH); the hadith has three chains of narrators, all of which are authentic:

• The first is that Muhammed bin Yahya was mentioned by Al-Najashi (2013) to be authenticated (p. 378), and Ahmad bin Muhammad, although the narration was shared between Bin Isa and Bin Khalid Al-Barqi, but it does not harm their authentication altogether.
• The second is Ibn Abi Mahboub, he is Al-Hassan Ibn Mahboub whom the sheikh trusted (Al-Tusi, 1441, p. 96).
• The third is Fudayl bin Yasar in which Al-Najashi (2013) stated that he is trustworthy, so he said ” He is Arabic, Basri, heartfelt, trustworthy” (p. 309).

4. Al-Kulayni narrated on the authority of Ali ibn Ibrahim on the authority of his father ibn ibn Abi Umair on the authority of Hammad on the authority of al-Halabi on the authority of al-Sadiq who said: If a man buys from a man something, they have the option, even with a spare, until they apart, and if they apart, the sale is confirmed (Al-Kulayni, 1388 AH, 170/6).

Al-Saduq (2012) narrated this Hadith with his chain of transmission on the authority of Al-Halabi (127/128). Al-Sheikh also narrated it with his chain of transmission on the authority of Ali bin Ibrahim likewise (Al-Tusi, 1394 AH), and the narration also has three ways, all of them are authentic.

5. Al-Kulayni (1388 AH) narrated on the authority of Al-Hussein bin Muhammad, on the authority of Mualla bin Muhammad, on the authority of Ali bin Asbat, on the authority of Abi Al-Hassan Al-Ridha said: I heard him say: The choice with an animal is three days for the purchaser, and in a non-animal is confirmed by their separate (216/16). Furthermore, A l-Najashi (2013) trusted Al-Hussein bin Muhammad explicitly (p. 66), and as for Mualla bin Muhammad Al-Ziyadi, there was no explicit documentation in his right except on the basis of recognition of the major narrators of Taksim, the narrator of Kamel Al-Ziyara. Ali bin Asbat was trusted by Al-Najashi by saying ((Ali bin Asbat Bayaa Al-Zatti Abu Al-Hassan Al-Muqri, Kofi, is a trustworthy (Al-Najashi, 2013, p. 252). This narration is considered valid based on the aforementioned narrator, otherwise it is weak based on the well-known Jabriya acceptance of the weak narration by acting upon it, it is correct.

The hadith of Hakim bin Hizam on the authority of the Prophet, he said: The two sale parties are by choice, as long as they do not separate. And in a narration by Ibn Omar: The Prophet (PBUH) said: The two sale parties are by choice, as long as they do not separate, or one of them says to the other: Choose, and perhaps he said: ((or it is an option sale)) Agreed upon (Sahih Al-Bukhari, 1311 AH. 4/275, Sahih Muslim, 2021, 10/174).

Evidence: The hadeeth makes separation as a goal for the obligation of the contract, or by choosing one of them to be necessary, and the separation through which commitment is obtained is all that is precluded by custom. Several objections were made though:

Malikis objection, due to its contradicts the work of the people of Madinah, and everything that was like that is null and void. The authenticity of the provision should not be in contradiction to the consensus of the people of Madinah (Al-Baji, 1999, 5/55).

There are two responses to such objection is minor and major. As for the major: the aforementioned condition was not agreed upon by the majority, so they are not required to do so. As for the minor, the consensus of the people of Medina to act contrary to it is not verified. Ibn Qudamah and others mentioned: That the saying that the choice of transaction palce is proven is narrated on the authority of Omar, Ibn Omar, Ibn Abbas, Abu Hurairah, and Abu Barzah Al-Aslami, and with this opinion said: Saeed bin Al-Musayyib, Shureh, Al-Sha’bi, Ata, Peacock, Al-Zuhri and Al-Awza’i.

It is clear that some of these scholars are from the people of Madinah, so how can there be a consensus of the people of Madinah with the disagreement of these scholars?

The Hanafi objection stems from the condition for acceptance of the provision that it is not a single provision, contrary to the Holy Quran, and that it is not included in what permeates the calamity (Al-Shawkani, 1414 AH, 5/pp. 81, 228).

Responding to such contradiction is:

These are the conditions of the report that the Hanafis adhere to, and the majority disagree with them, so they do not oblige them, provided that the choice at the transaction place is not among the things that pervade the calamity. Because those who annul the contract based on the choice of the transaction place are considered a few with regard to those who do not annul it, and also the Hanafis have made the well-known Mutawatir rule in these matters and the hadith is famous for their terminology (Jamil, 2013, 2.25).

Among the issues used to object the hadith is that the hadith signified the will to separate in words and not to separate physically, and they said: This is in the case when the seller said: I sold, and the buyer said: I bought, then here they separated and the choice was cut off, so if it was said to them: So where is the choice?

They said: It is the choice that the seller had before the buyer said: I buy, but if he said it, then in this case he and the seller may separate and the option is cut off (Al-Tahawy, 1994, 4/14).

Some contemporaries scholars gave two justifications (Jamil, 2013, 2/27):

The first justification

They indicated that dispersal is attributed to statements contrary to the apparent meaning, the hastening to understand from dispersal is dispersal from the place, and hastening is a sign of truth.

The second justification

There are narrations held by the majority that explain separation by physical separation rather than words, such as the hadeeth of Abdullah bin Omar, (If the two men pledge allegiance, then each one of them has the choice unless they separate and they are all together, or one of them gives the other the choice, then they pledged allegiance on that, then the sale is confirmed, and if they separate after they have pledged allegiance and no one of them left the sale, so the sale is confirmed (Sahih Al-Bukhari, 1311 AH. 4/275, Sahih Muslim, 2021, 10/174).

Evidences of scholars who see the choice in the transaction place is not proven

Those who proved the choice in the transaction place has been contradicted with the principle in the necessary treatment, which can be clarified as:

1. For the sale to take place in language and custom for the necessary exchange is not pledged in Shari’a, and that is for the knowledge of making many conditions for the option, some of which prevent it from taking place as necessary, such as the choice of the transaction place and the animal, as well as the option of the condition related to the time of the contract.

That may be rejected as the incompatibility does not occur, given that the option that necessitates the slipping of the contract is an external right that is foreign to the construction of the sale out of necessity and is not from the legal effects that are not separated from it. The proof of its departure from contract essence and the fact that the option is capable of dropping immediately after the contract without interruption of separation. Likewise, the condition of falling out in the body of the contract in order for ownership to become a must from the beginning.

If the transaction choice is required by this legal entity, then it is not reasonable to detach it from, such as the unreasonable establishment of the sale on the condition that it is not owned, with the clarity of the difference between the condition of not having an option in it; yet is it is a valid condition compared to the condition of all other permissible matters in it?

Yes, if the permissibility at the time of the transaction choice was judgmental, then it contradicts the construction of rational people and the law on necessity in the sale, because it is not correct to say that their construction is on necessity while adhering to the judgmental permissibility in the time of the transaction  choice. However, this remedy is clear invalid, to concede to them that the right of choice is subject to forfeiture .

2- Adhering to the hadith that the Prophet forbade selling by Bai’ al-Gharar (selling something that one does not have control on) (Al-Amili, 1372, 17/448).  Approximating that each one two parties does not know what he gets for the price or the one the prosperity.

This is rejected by the weakness of the hadith (i.e., Mursal hadeeth) mentioned in the transmission, if we interpret Bai’ al-Gharar as ignorance so that it means that the Prophet forbade a sale in which there is ignorance, then the problem is that the established sale is not unknown; for knowledge of the price, the value  and its amount, and ignorance of what happens to each one of them does not necessitate ignorance of the price and the value.

In addition, the interpretation of Bai’ al-Gharar by ignorance without danger has no witness, and if we interpret it by risk, then what danger is the transaction in if the selling parties know what is happening? This is because the danger means the money will go in vain and without compensation, and this is not directed at the place, because if the contract is rescinded, the price is returned and the appraiser takes, and if it is not rescinded, then he takes the price and does not demand the appraiser, so buyer took the money and reached it, so there is no danger in the selling.

2. If the choice is obtained, then it will not be possible for both parties to take over the contract, such as selling mash, which is a perishable food, so the option of transaction place was noted, because the sold object has missed the purchaser, so that it is not possible for him to take over what was contracted for, i.e. owning the commodity.

However, this is objected of the lack of  evidences that the ability of the prosperity to survive entered into proving the option, and the end of the matter the seller’s knowledge of damage.

3. Ghiath bin Ibrahim documented the story of Ali bin Abi Talib’s act that if a man clapped to sell, then the sale was obligatory (Al-Gharawi, 2019) with an approximation that if the two sellers clapped in the transaction place, the option to sell is necessary, and this meaning contradicts the extensive provision that necessities the two selling parties to separate physically, whether one of them clapped on sale or not applauded it.

This narration is not taken for granted, because it is not equivalent to the many authentic texts, so the authentication must be lifted from it in one of two ways:

The first: Interpretation, as for carrying (the sell is confirmed) on its linguistic meaning, i.e. its proof and verification by the deal as it is achieved by verbal construction and use, and proof in this sense is more general than necessity and obligation. On the contrary, It is not meant by its obligation and necessity until it is opposed by the extensive provision that governs the slippage of the sale as long as they are in the assembly whether they clap or not applauded.

The term “obligation to sell” carries a condition for the forfeiture of the option in the body of the contract, so the deal was not effective, but rather the one who is obligated is bound by its non-entitlement to annulment in the transaction place. This is supported by the presence of the word “sale” in the contract, where Ali said (when the man clapped on the sale), it is understood that the sale was confirmed between two parties, then the clapping occurred from them to prove his obligation to drop the option, not but clapping to confirm the sale (Al-Gharawi, 2019).

The second: The subtraction, either because it contradicts the definitive Sunnah, because the narrations proving the choice of the transaction place due to its abundance constitute the title of the definitive Sunnah. Everything that contradicts the Quran and what is in its status is rejected, due to the lack of privacy of the Quran in this aspect or for the sake of being in agreement with the Hanafi and Maliki schools of thought. This is done in the case of the stability of their doctrine in the era of the issuance of narrations on the absence of this option until the originality of the grandfather is disturbed in the narration of Ghayath.

5. On the authority of Ibn Abbas, he said: The Messenger said (Whoever buys food should not sell it until he receives it in full and takes possession of it) (Sahih Al-Bukhari, 1311 AH. 4/229, Sahih Muslim, 2021, 10/170) with close approximation: that the hadith permitted the disposal of the sold and mere receipt, whether the separation occurred or not, so it denies the establishment of the council’s option in general.

Responding to this by firstly that the aforementioned narration is not in the position of explaining how the necessity occurred in order to adhere to its release, but rather in the position of stating the holding the sold thing as a conditional corrected sale.

Secondly: If we accept that, the aforementioned provision is restricted to the narrations that prove the choice before separation, since acting on this narration and neglecting the provision.

6. On the authority of Abdullah bin Amr bin Al-Aas: The Messenger of God said: (The two sale parties are by choice as long as they do not separate, unless it is a deal of choice, and it is not permissible for him to separate from his owner for fear that he will resign) (Al-Nisa’i, 2001, 7/252). Meaning that if the contract was slippery for the sake of the choice in the transaction place, then there is no outcome for its annulment by dismissal, because it is a collection of the outcome. The request for dismissal is a presumption of the conclusion of the contract, as soon as it is completed.

In responding to that, the  dismissal does not mean its apparent meaning, but rather annulment is meant by the presumption of mentioning the hadeeth for the choice at the transaction place, because this is the appropriate meaning which made the Messenger of prevent dispersing, which is intended to invalidate the right of annulment for its owner. Furthermore, an issue is mentioned that makes it impossible to disperse, and resignation is not like that. But what is missed by separation is the annulment of the right of the choice at the transaction place and that the Prophet forbade the paradox for fear of resignation, not forbidding it, because the dismissal is not obligatory, but it is forbidden to leave the transaction place for fear of annulment with the right of choice.

On the contrary, if the meaning is carried on its apparent, then let us end the separation that does not result in it, because it is clear that dismissal does not concern the transaction place of the contract, but rather extends to an indefinite period.

7. On the authority of Ibn Omar in a hadith that he was riding a camel belonging to his father, and the Prophet said to Omar: (sell it to me) He said: He is yours, O Messenger of God! The Prophet said: ((sell it to me)) So Ibn Omar sold it from the Messenger of God, so the Prophet said: ((It is yours, O Abdullah bin Omar, and you can do with it whatever you want) (Sahih Al-Bukhari, 1311 AH, 4/280).

Approximately: The Prophet endowed the camel immediately after the contract and before the dispersal. This indicates that the condition of the sale was fulfilled by mere offer and acceptance without the need for dispersal from the council. Hence, if the sell due depended on dispersal, the gift of the camel to Abdullah bin Omar would not have been correct except after dispersal.

Some of the contemporary scholar provided two comments:

Firstly: It is well-known that they mentioned that separating from the transaction place makes the contract obligatory and does not make it complete, and based on that, it is permissible for each of the contracting parties to disperse with what he obtained, except that his effective disposition is dependent on the necessity of the sale, which is the dispersal of the contracting parties (Jamil, 2013, 2/21).

Secondly: Among the choice failures of the transactional place is that one of the two contracting parties disposes of the consideration in a way that takes it out of his possession, and the second remains silent on that, because his silence indicates his choice to abide by the contract (Jamil, 2013, 2/21).

8. The legislation of the choice at transition place leads to instability of transactions, and stability is achieved by saying that the contract is required as soon as it is convened.

This was replied to by:

First: It is possible, based on the conduct of the contract on necessity, by stipulating that it falls in the contract, and stability in transactions takes place  (Jamil, 2013, 2/22)

That was rejected by: That the stipulated condition to oblige the legislator with it is the specificity of what is taken within the necessary contract, and for this reason they said that two parts of the conditions are irrelevant:

Firstly: the initial conditions are not taken into account in the contract, because this commitment is by virtue of a promise between two parties in that it does not have to be acted upon unanimously.

Secondly: The commitments taken in permissible contracts, such as a gift, agency, deposit, loan, and the like. If the contract is legally permissible, the conditions taken into it are due. One of the permissible types of contracts is the sale for the duration of a meeting in transaction place, so a condition was taken in it that does not require fulfillment in the first place because it is an obligation in the contract of the law of the legislator to illuminate it before dispersal.

Second: Jamil (2013) reported that if the choice is proven by the authentic texts from the legislator, then it must be one of the factors for the stability of the transactions, and perhaps that is the wisdom behind legislating the choice. Considering that the basis of commitment to the contract is consent, and the confirmation of this consent leads to the stability of the transactions absolutely. The contract has the right to withdraw, and despite that, they did not back down from and insisted on it.

This means that each one of sale parties has been completely satisfied with what he received from the other, and the hadith of the option in one of its narrations expressly confirms this meaning. The Messenger of God said: “The two sale parties are by choice, as long as they do not separate, and each of them takes from the sale what he desires. He repeated it trice (Al-Nisa’i, 2001, 7/251).

This is objected by the aforementioned speech contradicts what was previously mentioned. It was mentioned that the well-known scholars did not say that the contract cannot be completed except by choice or by abandoning the transaction place, but rather they said that it is not necessary. Based on what he mentioned that the wisdom in legislating the choice is consent, it is clear that the contract is only completed with it. Satisfaction is one of the descriptions that evaluate the reality of the sale, and the aforementioned narration has no evidence in it to consider the origin of consent.

Conclusions

1. The council refers to the absolute place of the contract.
2. It is named by the choice of the transaction place due to the fact that it is mostly achieved in the sitting state, otherwise it has no affiliation in the council at all.
3. The choice at the transaction place is achieved if the two people deal with standing without sitting down.
4. This option does not have jurisdiction over the place of transaction because it is proven if the two selling parties are walking, or if one of them is in a state of running or flight and the other is following him.
5. Evidences indicate that the choice at transaction place is proven, and the wisdom of its legislation is that it is one of the factors of stability of transactions.

References

Al-Ahsa’i, M. J. (1985). Awalali Al -Aziziya in religious hadiths. Qom: Sayyid Al-Shuhada Press.

Al-Amili, A. (1372).  Wasa’il Al-Shia. Aal Al-Bayt Foundation for the Revival of Heritage.

Al-Amili, M. J. (1419 AH). The key to dignity, (1st edition). Publishing Institution

Al-Ansari, M. (1420 AH). Al-Makasib. Qom: Bagheri Press.

Al-Baji, A. A. (1999). Al-Muntaqah in Explanation of Malik’s Muwatta. Beirut: Dar Al-Kutub Al-Alami.

Al-Bukhari, A. A. (1311). Sahih Al-Bukhari. Beirut: Dar Touq Al-Najat.

Al-Gharawi, A. (2019). The revision in explanation of the Makaseb, Al-Khoei’s research report.

Al-Hilli, I. (2021). Explanation of benefits. Qom: Scientific Press.

Al-Kulayni, A. (1388 AH). The branches of Al-Kafi. Dar Al-Kutub Al-Islamiyyah.

Al-Najashi, A. (2013). Rijal Al-Najashi. Qom: Publishing Corporation.

Al-Nisa’i, A. (2001).  Sunan Al-Nisa’i. Beirut: Al-Risala Foundation.

Al-Qummi, A. (1967). Tafsir Al-Qummi. Najaf: Al-Huda Library.

Al-Saduq, A. J. (2012). Al-Khasal. Publishing Corporation.

Al-Sayuri, M. (1408 AH). The wonderful revision. Qom: Marashi Library.

Al-Shawkani, M. (1414 AH). Fath Al-Qadeer. Dar Ibn Katheer.

Al-Tahawy, A. J. (1994). Explanation of the meanings of Athar. Beirut: World of Books

Al-Tusi A.  J.  (1441AH). Al-Fihrist. Investigated BY Sheikh Jawad Al-Qayumi. Islamic Publication Institution.

Al-Tusi, A. J. (1394 AH). Aliastibsari. Najaf: Dar Al-Kutub Al-Islamiyyah.

Al-Tusi, A. J. (1394 AH). Al-Tahdheeb. Tehran: Khorshid Press.

Al-Zubaidi, M. (1987). The crown of the bride from the jewels of the dictionary. Kuwait Edition.

Ibn Tawus, A. (1965). Falah Al-Sail. Al-Haidari Library and Printing Press.

Jamil, H. (2013). Issues of Al-Muqarnet Jurisprudence , (1^st edition). Kirkuk: Amir Library.

Malik bin Anas, (A.H). Al-Mudawwanah Al-Kubra, narrated by Sahnun: Book of Selling by Choice Unless They Separate, (Vol. 3). Egypt, Al-Sa`ada Press.

Rijal Altuwsi (n.d).The Teachers’ Association edition.

Sahih Muslim (2021). The Book of Transactions: Chapter: The prohibition of selling. Beirut: Heritage Revival House.

Shaarani, A. (1940). Al-Mizan Al-Kubra. Egypt: Published by Mustafa Al-Babi.

The Qur’an (M.A.S Abdel Haleem, Trans.). (2004).  Oxford University Press.