Nasai

Hadith Commentary:
When the seller (bā’iʿ) and the buyer (mushtarī) engage in a transaction of sale, the sale is not finalized as long as they remain present in the session of contract (majlis al-‘aqd). However, when the session is concluded, the sale is considered binding.

If, during the session, either of them is granted the option to confirm or annul the sale, and he exercises this option to confirm or annul the sale during the session itself, then he possesses this right; for this, the conclusion of the session is not necessary.

This option can be possessed by either the seller or the buyer.

To restrict this option exclusively to the buyer and to exclude the seller from it is not correct, because the wording of the hadith does not permit such a distinction.

Imam Bukhari rahimahullah has also established this very point.

Hadith Commentary:
(1)
The meaning of this hadith is that as long as the seller and the buyer are present in the same place, they both retain the option (khiyar) to conclude or annul the sale. However, if one of them grants the other the authority, saying, "You have the option to finalize the sale," then when the other exercises this option, the sale becomes binding, even if they have not yet separated from each other. And if he remains silent and does not respond with either yes or no, his option does not expire; however, the option of the one who granted the authority does expire. The second situation in which the sale becomes binding is that after the contract of sale, both parties separate from each other, and neither of them annuls the sale; in this case, the sale also becomes binding. In this situation, the option due to defect (khiyar al-‘ayb) remains.

(2)
‘Allamah Khattabi rahimahullah has said that this hadith is a clear proof for the establishment of the option of the session (khiyar al-majlis), and it invalidates every other interpretation besides this. Furthermore, it clarifies that what is meant by separation is not separation in words, but rather separation of bodies. It is the physical separation that terminates the option. (Fath al-Bari: 4/421)

Hadith Commentary:
That is, they would quickly depart from there so that the option of canceling the sale (fasakh bay‘) would no longer remain. From this, it is clearly understood that by "separation" in the hadith, what is meant is the separation of both parties.

Hadith Commentary:
(1)
It is apparent from the title that Imam Bukhari rahimahullah intends to discuss the duration of the option (khiyar), but there is no mention of it in the hadith. Therefore, no specific duration is fixed for it; rather, it can be increased or decreased as needed. For example:
If one has bought cloth or similar items, then one day; if it is an animal, then two days; and if a house is purchased, then the option can be given for a week.
The seller and the buyer may fix whatever duration they wish; this is left to their discretion.

(2)
Some scholars fix the duration of the option with a condition (khiyar al-shart) as three days, because Imam Bayhaqi rahimahullah has narrated from Ibn Umar radi Allahu anhuma that the Messenger of Allah sallallahu alayhi wa sallam said:
"The duration of the option is three days." (Al-Sunan al-Kubra lil-Bayhaqi: 6/274)
However, this hadith is not a supplement to the aforementioned hadith.
In any case, the position of Imam Bukhari rahimahullah is that no limit for the duration of the option is specified in the hadith, therefore, it is not correct to set a limit for it.
Depending on the item sold, there is room for increasing or decreasing the duration.
(Fath al-Bari: 4/413)
And Allah knows best.

Hadith Commentary:
That is, when the seller, after the sale, grants the buyer the option (of confirming or canceling the sale), and the buyer says, “I confirm the sale,” then this sale is distinct from the one in which the condition of option (khiyar) was stipulated beforehand—that is, where the transaction took place, they should not depart from that place.
If they remain there, or both walk together for miles, the option will remain, even if more than three days pass. This is the explanation of bay‘ al-khiyar (sale with option) that we have given here.
Imam Nawawi has also agreed upon the preference of this meaning.
And Imam Shafi‘i rahimahullah has also held this view with certainty.
Some have interpreted it thus: but in that sale in which the condition of option (khiyar) is stipulated, the option will not be nullified by departing from that place; rather, the option will remain until the specified period.

Hadith Commentary:
(1)
By "Bay‘ Khiyar" (sale with option), it is meant that the seller gives the buyer the option and says, "I confirm the sale." The jurists have mentioned three opinions regarding this, the details of which are as follows:
➊ Each of the seller and the buyer has the option, except in the sale in which the option to complete the contract is present, because this makes the contract of sale binding, even if they have not yet separated from the session.
➋ Both have the option as long as they have not separated, except in the sale in which the condition of khiyar (option) has been stipulated, i.e., an option for one or two days has been given. This option remains until the period ends, even if they separate.
➌ In the sale in which it has been stipulated that no one has the option in the session, in this case, the sale becomes binding by the contract itself. Then neither of them retains the option.
(‘Umdat al-Qari: 8/387)
However, this last case contradicts the explicit wording of the hadith; therefore, according to us, this last meaning is questionable.
Wallahu a‘lam. (2)
Imam Bukhari rahimahullah has established from this hadith the option of the session (khiyar al-majlis), and by this is meant physical separation (tafarraq abdan).
This is also the position of Ibn ‘Umar and Abu Barzah al-Aslami radi Allahu anhum.
In some narrations, it is mentioned that Ibn ‘Umar radi Allahu anhuma bought a camel from a man.
After placing the price before him, he said:
"You still have the option: accept the price or take back the camel."
(Fath al-Bari: 4/415)

Hadith Commentary:
(1)
The purpose of Imam Bukhari rahimahullah is that when a specific period is not mentioned in the narration, it should be left unrestricted; specifying a particular period is not permissible. This supports those who do not set any fixed period for the option (khiyar).
Some scholars hold the view that the period for the option (khiyar) cannot exceed three days.
According to them, if the period for the option (khiyar) exceeds three days or if no period is specified at all, then the sale becomes invalid.
(2)
The position of Imam Bukhari rahimahullah is that the sale is valid, and the option (khiyar) remains for as long as the period is fixed.
Since there was a difference of opinion among the jurists (fuqaha) on this issue, Imam Bukhari rahimahullah did not title the chapter with certainty and confidence, but rather adopted an interrogative style.
In any case, when the period for the option (khiyar) is not specified in a sale, the sale becomes binding and cannot be revoked, except if a defect appears in it which was not previously disclosed.
(Fath al-Bari: 4/414)

Hadith Commentary: Benefits and Issues: If two people engage in the buying and selling of something, and their transaction is mutually agreed upon, then as long as they both remain present at the place where the sale took place, both (the seller and the buyer) have the right to annul (break, terminate) the transaction. This is called the "option of the session" (khiyar al-majlis). The words of the hadith, كَانَا جَمِيْعًا, مَالَمْ يَتَفَرَّقَا, are explained and interpreted to mean that "separation" refers to physical separation (tafarraq bil-abdan), that is, both have not parted from that place. The narrator of this hadith, Ibn Umar radi Allahu anhuma, understood it in this way, and another narrator, Abu Barzah radi Allahu anhu, also took it to mean the same.

The principle of the Hanafis is that the opinion and understanding of the narrator take precedence. According to this principle, it is also necessary here that "separation" means physical separation (tafarraq bil-abdan), because Ibn Umar used to leave the session of sale to finalize the transaction. Furthermore, the words of the hadith, أَوْ يُخَيِّرَ أَحَدُهُمَا الْآخَرَ, "one of them gives the other the option," and إِنْ تَفَرَّقَا بَعْدَ أَنْ تَبَايَعَا وَلَمْ يَتْرُكْ وَاحِدٌ مِنْهُمَا الْبَيْعَ, "if after the sale they both separate and neither of them has annulled the sale," فَقَدْ وَجَبَ الْبَيْعُ, "then the sale becomes binding," also support this. Moreover, in the hadith, the option is given after the sale, and the sale occurs after both offer and acceptance (ijab wa qubul), so both parties have the right to annul the transaction as long as they remain present at the place where the deal was finalized. However, if even one of them leaves that place, walks away, or separates, then the right to annul is terminated.

This is the position of Imam Shafi'i, Imam Ahmad, the literalists (Ahl al-Zahir), and the hadith scholars (muhaddithin). But according to Imam Abu Hanifah (the Hanafis) and Imam Malik (the Malikis), "separation" refers to separation by words (tafarraq bil-aqwal), meaning when the seller says, "I sell this item for such and such," then the buyer has the option to accept or not accept this statement. However, as long as the deal is not finalized, the sale has not occurred, so what is the meaning of the option? The Malikis say that the meaning of physical separation (tafarraq bil-abdan) is contrary to the practice of the people of Madinah. But are not Ibn Umar, Abu Barzah, Imam Zuhri, and Ibn Abi Dhi'b all from Madinah? The Hanafis have made three interpretations of this hadith:

(1) The meaning of this hadith is that when one party presents the sale in the session, as long as the session continues and they have not separated, the other party has the option to accept the sale. After the session ends, the option to accept ends. So, if the other party has not accepted the deal, how can the sale be considered complete?

(2) By "separation of bodies" (tafarraq bil-abdan) is meant "separation by words" (tafarraq bil-aqwal), because when the deal is finalized, they can separate, but if they do not separate, will it be considered physical separation?

(3) By "option of the session" (khiyar al-majlis) is meant "mutual rescission" (iqalah), that is, when the sale is finalized and after that, one party, for their own benefit, wishes to annul the transaction, the other party, although not legally obliged by the Shari'ah to agree, should, from a moral standpoint, agree to it. Clearly, in this case, one party does not have the option, because he is bound by the consent of the other party.

Therefore, after writing all the arguments of the Hanafis, Allamah Taqi Usmani says that all the excuses the Hanafis have presented regarding this hadith, in reality, the heart is not satisfied with them.

ففي جميع دلائلهم و تاويلاتهم عندي نظر, "All their arguments and interpretations, in my view, are questionable," because Ibn Umar radi Allahu anhu himself understood from this hadith the meaning of physical separation and the option of the session (khiyar al-majlis).

(Takmilah Fath al-Mulhim: vol. 1, p. 373)

Hadith Commentary: Benefits and Issues: "Except the sale with option (khiyar):"
According to the majority, its meaning is that one party says to the other, "Choose, select one thing," that is, either annul the sale or make it binding, because this meaning is supported by other ahadith. In one hadith, it has been mentioned: "If one of them gives the other the option (khiyar), and they make the sale on that basis, then the sale becomes binding."
In another hadith, it is stated: "If their sale is with option (khiyar), then the sale becomes binding." That is, if both have made the sale with the option (khiyar), then the sale becomes binding.

The Hanafis have taken its meaning to be that the sale is made with the condition of option (khiyar al-shart), i.e., one party gives the other the option that you have the right to return (the item) for three days. In this case, even after the conclusion of the session (majlis), the option will remain for the specified period.

According to the Shafi'is, the meaning is as per the majority: if the option is given in the session (majlis) and the other party confirms the sale, then the sale becomes binding and now the option of the session (khiyar al-majlis) has ended. Some have interpreted it to mean that the option of physical separation (tafarraq abdan) will end in the case where the option has been terminated in the session, i.e., one party has told the other, "Now this transaction cannot be annulled."

If in the session, one party gives the other the option to annul the transaction even after the session, which is called the option of condition (khiyar al-shart), then according to the Shafi'is and Hanafis, its period cannot exceed three days.

According to Imam Ahmad, Imam Abu Yusuf, Imam Muhammad, and Ishaq, the two parties may specify whatever period they wish.

If, in the case of the option of condition (khiyar al-shart), no period is specified, then according to the Shafi'is and Hanafis, the sale becomes invalid. According to Imam Awza'i, this condition becomes invalid but the sale remains valid. According to the Malikis, the period will be determined according to the nature of the item.

According to Imam Ahmad and Ishaq, the option will remain forever.

Hadith Commentary: Benefits and Issues: In this hadith, what is meant by *iqalah* is the annulment of a sale, because the basis of *iqalah* is the mutual consent of both parties. And this *iqalah* can take place even after the conclusion of the session (majlis). Therefore, in order to avoid *iqalah*, merely ending the session is not sufficient. It is also possible that Ibn Umar (radi Allahu anhu) was not aware of the hadith that, to avoid *iqalah*, the session should not be ended, and if one party wishes to annul (*iqalah*), then the other party should consent to it.

Explanation:
1:
That is, if before annulling the contract, both the seller (bā’i‘) and the buyer (mushtarī) physically separate from the session of contract (‘aqd), then the sale becomes finalized, and after that, neither of them will have the right to annul (the contract).

2:
In this case, even after separating, the right of option (ikhtiyār) will remain according to the stipulated condition,
that is, if the condition of option (khiyār) has been stipulated, then even after separating from the session, the option will remain according to the conditions.

Benefits and Issues:
Benefit: In technical terminology, this is referred to as "khiyar majlis" (option of the session).
And its connection is with the parties separating from the place of sale, not with the subject matter of the sale changing.
However, if it has been decided to grant the option for a specific period, whether less or more, then that is a separate matter.
In such a case, the specified period will be considered authoritative.

(1) From this blessed hadith, the issue of the option (khiyar) for buyers and sellers is established: both the seller (bā’i‘) and the buyer (mushtarī) have the right to conclude or not conclude the transaction as long as they have not separated from that sitting (majlis). When they separate from each other, the option (khiyar) ends. However, if they mutually grant each other the right to think, consider, and decide on the transaction for a certain period, then the option remains until the specified time. After that time passes, the transaction becomes final and the option also ends.

(2) From this hadith, the permissibility of bay‘ khiyar (the sale with an option), i.e., granting the option to each other or one party granting the option to the other, is established.

(3) Bay‘ khiyar refers to a sale in which both parties, at the time of the sale, have ended the right of return and have said: “If you want to return, do it now; otherwise, there will be no return.” In such a case, even though the session of sale (majlis al-bay‘) remains, the option does not remain. There is another meaning of bay‘ khiyar as well: a sale in which the right of return is retained for a longer period (for example, three days, etc.), so in such a sale, even after the session is over, the right of return remains until the specified time. Both meanings are correct.

“They separate.” However, in another narration, this has been prohibited; see: (Sunan Abi Dawud, Book of Transactions, Hadith: 3456, and Sunan an-Nasa’i, Book of Transactions, Hadith: 4488). Perhaps Abdullah radi Allahu anhu was not aware of this hadith. And Allah knows best.

Benefits and Issues:
➊
After a transaction is finalized, when the price has been paid and the item has been received, the sale is complete. However, it is possible that the buyer feels that this transaction should not have taken place at this price and wishes to return the item, or the seller feels that he should not have sold the item and wishes to take it back. In such a case, the transaction should be annulled and the exchange of goods and money should be reversed.

➋
Taking back sold goods (i.e., accepting a return) carries great reward. See: (Sunan Ibn Majah, Hadith 2199)

➌
The right to rescind the sale remains as long as both parties are present in the same gathering (majlis).

➍
If a specific period is agreed upon between them, then the right to return or take back the item will remain until that period expires. For example:
The buyer says:
“If I do not like this item, I will return it within three days.”
Or the seller says:
“If I do not take it back by tomorrow evening, then afterwards I will not make any demand for its return.”
In this case, even after the gathering has dispersed, the right will remain until the specified period.

➎
If they did not rescind the sale in the gathering, nor was any period specified for returning the item afterwards, then as soon as the gathering disperses, the right of both parties will end.

Hadith Authentication: [واخرجه البخاري 2111، ومسلم 1531/43، من حديث مالك به]
Jurisprudential Explanation:
➊ In this hadith, "separation" refers to physical separation, i.e., parting of bodies. Nafi‘ rahimahullah used to say that when Ibn ‘Umar radi Allahu anhu liked a transaction, he would separate himself (by moving away) from the seller. [صحيح بخاري 2107، صحيح مسلم 1531، دارالسلام : 3856]
➋ Some people claim that there is a consensus (ijma‘) of the people of Madinah against this hadith, but such a so-called consensus is not valid if it excludes Sayyiduna Ibn ‘Umar radi Allahu anhu and others. Also see [التمهيد 9/14]
➌ While rejecting this authentic hadith, Mahmood Hasan Deobandi (Aseer Malta) said:
«و خالف ابوحنيفته فيه الجمهور و كثيراً من الناس من المتقدمين و المتاخرين صنو ارسائل فى ترديد مذهبه فى هذه المسئلة ورجح مولانا شاه ولي الله دهلوي قدس سره فى رسائل مذهب الشافعي من جهته الأحاديث والنصوص و كذلك قال شيخنا مدظله يترجح مذهبه وقال : الحق والانصاف أن الترجيح للشافعي فى هذه المسئلة و نحن مقلدون يجب عليان تقليد امامنا ابي حنيفته والله اعلم».
And in this (issue), Abu Hanifah opposed the majority (jumhur) and many of the earlier and later scholars; they wrote treatises refuting his position in this matter, and Mawlana Shah Waliullah Dehlawi quddisa sirruh, in his treatises, preferred the madhhab of (Imam) Shafi‘i due to the ahadith and evidences, and likewise our Shaykh, may Allah preserve him, said: their madhhab is the stronger one, and said: The truth and justice is that in this issue, Shafi‘i has the preference, and we are followers (muqallid); it is obligatory upon us to follow our Imam Abu Hanifah. And Allah knows best. [تقريرترمذي ص36 مطبوعه ایچ ایم سعید کمپنی کراچی]
Reflect on how blind following (taqlid) has distanced these people from truth, justice, and evidences!

Takhrij:
«أخرجه البخاري، البيوع، باب إذا خير أحدهما صاحبه بعد البيع، حديث:2112، ومسلم، البيوع، باب ثبوت خيار المجلس للمتبايعين، حديث:1531.»©Explanation:
➊ In this hadith, the merchant and trader are given the right to maintain or annul the transaction.
➋ The meaning of "ikhtiyar" or "khiyar" is also that the buyer and seller have the right to keep or break the deal.
➌ There are many types of this.
Among them, two are specifically mentioned here.
One is "khiyar majlis," which has been mentioned above.
The second is "khiyar shart."
This is when either one or both parties stipulate that for a certain period, they will have the right to maintain or return the transaction.
If the buyer wishes to return it, the seller must take it back without hesitation or argument.
In addition to this, there are two or three more cases:
1. Khiyar ‘ayb: The buyer says that if there is any defect or flaw in it, I reserve the right to return it.
2. Khiyar ru’yat: The buyer says that the deal is settled, but I will decide whether to take it or not after seeing it. If, upon seeing it, the buyer does not approve of the deal, the sale will not be concluded.
3. Khiyar ta‘ayyun: The buyer says that among these, whichever item or animal I like, I will take.
In any case, the Shari‘ah has established countless eases and conveniences for both parties so that disputes and conflicts do not arise in any way.
Mutual consent of both parties has been made necessary in buying and selling.

Benefit:
There are many types of options (khiyar), but one type is mentioned in this hadith. Khiyar al-Majlis: This means that as long as both parties are present at the place where the sale took place, each of them has the right to annul the sale, as the Messenger of Allah sallallahu alayhi wa sallam said:
«البيعان بالخيار ما لم يفترقا »[صحيح بخاري : 2079]
Each of the seller and the buyer has the option as long as they have not separated.

Imam Ibn Qayyim rahimahullah states:
“The Lawgiver sallallahu alayhi wa sallam has established the option of the session (khiyar al-majlis) in sales for the benefit of both parties and for complete mutual consent, which Allah the Exalted has stated as a condition for sales, because generally sales are conducted hastily without due consideration. Therefore, it is among the excellences of this perfect Shari‘ah that it has set a limit (as long as both parties are present at the place of sale) within which both parties may reflect and reconsider their decision.” (I‘lam al-Muwaqqi‘in: 3/164)

It is stated in Sahih al-Bukhari:
« كل بيعين لا بيع بينهما حتى يتفرقا إلا بيع الخيار» (Hadith number: 2113)
A sale will not become binding between the buyers and sellers until they separate, except in the case of a sale in which they grant each other the option.