The following is a translation from the Arabic book ‘Mashroo’ Qaanoon Al-Buyoo’ Fee Dawlah Al-Islaamiyah’, first edition by Ziyaad Ghazlaan.
Article 12:
It is the right of the Baa’i (seller) and Mushtari (buyer) to annul the trade as long as they are still gathered in the Majlis (sitting) of the ‘Aqd (contract) until the time that their bodies separate (depart).
Al-Bukhaari narrated from Hakeem Bin Hizaam (ra) that he said: The Messenger of Allah (saw) said: “The two traders (buyer and seller) have the choice (to cancel the trade) as long as they have not departed” or (in another version): “until they have departed” and the Wajhu-d-Dalaalah (evidential aspect/point) in the Hadeeth is that the Messenger of Allah (saw) gave the seller and buyer the choice between going through with the sales contract or annulling it until the time that they depart (from each other). Ibn ‘Umar (ra) related: The Messenger of Allah (saw) said: “The buyer and the seller have the option to cancel or confirm the bargain before they separate from each other or if the sale is optional (or the right has been given to annul between the two parties). Naafi` said: Ibn `Umar used to separate quickly from the seller if he had bought a thing which he liked” (Al-Bukhaari). In Saheeh Muslim it was related that Ibn ‘Umar (ra): “If he had traded with a man and he didn’t want it to be dismissed, he would get up and walk off for a little while and then return to him”. So in the above Hadeeth the Messenger of Allah (saw) established that after the completion of the trade deal both the seller and buyer have a choice to go back on the trade without the consent of the other party as long as they have not physically departed from the Majlis (sitting place or place where the trade is convened). This is made clear by the action of Ibn ‘Umar (ra) who used to walk away physically (with his body) from the trader after completing the trade deal which indicates clearly that Ibn ‘Umar who was the narrator of the Hadeeth from the Nabi (saw) held the view that he had the choice to cancel the trade after having completed the sale contract as long as the bodies had not separated. And it was related in the Sunan of Ibn Maajah from Abu Al-Wadee’ (ra) that he said: “We were travelling and a man came and he had a horse with him so a man from amongst us asked: Would you sell this horse for this boy (slave)? He said: Yes. So he sold him and then slept the night. When he work up he got up onto his horse so our companion said: What are you doing with the horse, you have already sold it to me. He said: I do not have a need in making this trade. He replied: It is not your right; you have sold it to me. Then the people said: this is Abu Barzah the companion of the Messenger of Allah (saw) so he approached and said to them: Are you content with the judgment of the Messenger of Allah? So they replied: Yes. He said: The Messenger of Allah (saw) said: “The two trading parties have the right of choice until they separate (ways)” and I do not see (in my view) that you have yet separated ways” (Saheeh Ibn Maajah).
And the Wajh-ud-Dalaalah (evidential point/aspect) from what preceded is that a day and a night had passed approximately since the completion of the sale deal in the place in which it was convened. In this reality and circumstances the companion of the Messenger of Allah (saw) considered that they (the trading parties) had the right of choice because they had not departed with their bodies.
Article 13:
The choice of the Majlis (the place of convening the sales contract) disappears in the following circumstances:
1) If the seller or buyer willingly depart from the Majlis Al-Bai’.
2) If one or both of the parties choose a binding sale.
3) If one of the two contracting parties behaves with the sold item in a manner that is the same as what the owner would behave within the period in which the choice of the Majlis remains.
As for the disappearance of the choice when the seller and buyer depart from each other then this is due to the statement of the Messenger of Allah (saw): “The two traders have the choice (to rescind the trade) as long as they have not departed” meaning that the trade does not become binding until the seller and buyer have parted ways. Therefore if the parting of ways happens then the Khiyaar (choice) of the Majlis disappears and the sale becomes binding. What makes this clear is that Ibn ‘Umar who related the Hadeeth of the Khiyaar (choice) of the Majlis, used to walk away and then return so that the Khiyaar (choice) of the Majlis would fall (i.e. no longer exist or be valid) and so that the sale would become binding.
As for the disappearance of the choice if one of the contracting parties chooses a binding sale then the Daleel for this is what was related by Ibn ‘Umar (ra) when he said: The Messenger of Allah (saw) said: “If two men trade then each of them has the right of Khiyaar (choice) as long as they do not part ways and are together. Or one of them chooses the other so if one of them chooses the other and then make the trade upon that then the trade becomes obligatory and if they part ways after making the trade and one of them has still not left the trade then the trade has become obligatory” (Saheeh Al-Jaami’ As-Sagheer). So in regards to his (saw)’s statement: “ Or one of them chooses the other so if one of them chooses the other and then make the trade upon that then the trade becomes obligatory” then the Mantooq of the Hadeeth is that: When At-Takhyeer (choosing) happens then the Khiyaar (choice) of the Majlis falls (i.e. no longer applies) and the sale becomes Waajib (obligatory) i.e. the sale becomes Laazim (binding). And what is meant by akhyeer is that one of the contracting parties says after the completion of the sale deal: Choose whether you want to ratify the ‘Aqd or annul it. Then if the sale is ratified (finalized) then the sale becomes Laazim (binding) and the choice of the Majlis no longer applies and even if they have not physically parted ways.
What confirms that is: “That the Nabi (saw) bought something that is carried on the back or upon the head made out of leaves that had fallen from a tree from a Bedouin. Then when the sale was made obligatory the Nabi (saw) said to him: Choose: So the Bedouin said to him: ‘Umrakallah Bai’an (i.e. he agreed)” (Hadeeth Hasan, Saheeh Ibn Maajah).
So the Messenger (saw) gave him the choice (of ratifying) after the completion of the sale deal and this indicates that this giving of choice takes away the choice of the Majlis.
As for the negation of the choice due to behaviour in regards to the contracted thing which is the same as the behaviour of an owner with his own property whilst the period of the Majlis is still ongoing then this is because the negation of the choice occurs by the statement when the choice is given to make the contract binding. Therefore just as the choice disappears with the statement it also disappears with the action that indicates that the contract has been chosen to be made binding.
Article 14:
If one of the two contracting parties dies whilst in the sales Majlis before the departing happens then the choice of the one who has died falls (is removed) and the choice of the living party remains until he departs from the Majlis.
This is due to the statement of the Messenger (saw): “As long as they have not departed ways” and the text that came with the: ‘separation of the bodies (i.e. physically)’. And here the body of the dead and the body of the living are still in the Majlis Al-Ba’i and as such the text includes them both. The choice of the dead person falls from him with his death whilst the Khiyaar (choice) of the living person remains due to the lack of the separation of the bodies.
