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Al-Majallah al-Ahkam al-‘Adaliyyah
Chapter 6: Options
Section 1: Contractual Options
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The vendor, or the purchaser, or both, may insert a condition in the contract
of sale giving them an option, within a fixed period, to cancel the sale
or to ratify it by carrying out the term thereof.
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The person is the enjoyment of an option conferred by the contract is empowered
either to cancel or to ratify the contract within the period of the validity
of the option.
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Both cancellation and ratification of the contract may be by word of mouth
or by conduct.
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Words importing ratification are words implying satisfaction, such as,
"I ratify", or " I am pleased". Words importing cancellation are words
implying dissatisfaction such as," I have cancelled" or, "I have gone back".
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Acts importing ratification are those acts implying satisfaction and acts
importing cancellation are those acts implying dissatisfaction.
Example: A purchaser having a right to an option performs some act
within the period during which the option is valid, indicative of a right
of ownership is such property, such as putting it up for sale, or pledging
it, or letting it on hire. Such act is an act of ratification by conduct.
If the vendor has an option and deals with the property in the same way,
it is an act of cancellation by conduct.
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If the person possession the allows the period during which the option
is valid to expire without either cancelling the sale or ratifying it,
the sale becomes irrevocable.
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An option conferred by contract is not transmissible by way of inheritance.
Thus, if the person possessing the option is the vendor, the purchaser
becomes the owner of the thing sold upon the death of the vendor. If the
purchaser is the person having the option and dies, his heirs become owners
of the thing sold without any option.
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If both vendor and purchaser have an option, the sale can be cancelled
by whichever party so desires. if one party only ratifies, that party loses
his option, the other retaining his.
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If the vendor alone has an option, he does not lose his title in the thing
sold, which is still considered to be a part of his own property. if the
thing sold is destroyed while in the possession of the purchaser after
delivery thereof, the fixed price does not become due, but the purchaser
must pay the value thereof on the day he took delivery.
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If the purchaser alone has an option he acquires a title in the thing sold,
which is considered to be a part of his own property. If the thing sold
is destroyed while in the possession of the purchaser after delivery thereof,
the fixed price must be paid.
Section 2: Option for Misdescription.
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If the vendor sells property as possessing a certain desirable quality
and such property proves to be devoid of such quality, the purchaser has
the option of either cancelling the sale, or of accepting the thing sold
for the whole of the fixed price. This is called option for Misdescription.
Examples: (1). If a cow is sold described as giving milk and it proves
that she has ceased to give milk, the purchaser acquires an option.
(2). If a stone sold at night-time as a red ruby proves to be yellow
ruby, the purchaser acquires an option.
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The option for misdescription is transmissible by way of inheritance. That
is to say, that if on the death of the purchaser who has an option for
misdescription, it turns out that the thing sold does not conform to the
description given, the heir also has the power of cancelling the sale.
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If the purchaser having an option for misdescription deals with the thing
sold in manner indicative of a right of ownership over such thing, he loses
his option thereby.
Section 3: Option as to Payment
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Vendor and purchaser may validly conclude a bargain whereby payment of
the price is to be made by a certain time and in the event of payment not
being made, the sale is not to take place. This option is called an Option
as to Payment.
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If the purchaser does not pay the price within the stipulated period, a
sale concluded subject to an option as to payment is voidable.
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If a purchaser having an option as to payment dies within the prescribed
period, the sale is void.
Section 4: Option as to Selection.
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A stipulation may validly be made in a sale whereby the purchaser may take
whichever he likes of two or three things at different prices the like
of which cannot be found in the market, or the vendor may give whichever
one he pleases. This is called an Option as to Selection.
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A period must be fixed during which the option as to selection is valid.
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A person having an option as to selection is bound to choose the thing
he has bought on the expiration of the prescribed period.
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An option as to to selection is transmissible by way of inheritance.
Example: If the vendor sells three pieces of cloth all being of one
type and consisting of superior, medium and inferior quality, the purchaser
to take the piece he prefers within a period of three or four days, and
such purchaser agrees thereto, a valid sale is concluded, and on the expiration
of the stipulated period, the purchaser must choose one and pay the fixed
price thereof. If he dies before exercising his option, his heir must choose
one in the same manner.
Section 5: Option as to Inspection
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If a person buys a piece of property without seeing such property, he has
an option upon inspection thereof of either cancelling the sale or of ratifying
it. This is called Option as to Inspection.
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The option of inspection is not transmissible by way of inheritance. Consequently,
if the purchaser dies without having seen the property which he has bought,
his heir becomes owner of the property without having any option in the
matter.
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No option of inspection accrues to the vendor who sells property without
seeing it . Example:- A sells property which he has not seen and which
has come to him by way of inheritance. The sale is concluded without any
right of option.
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The object of the option of inspection is to ascertain the nature of the
thing sold and the whereabouts thereof.
Example: A person who examines the outside of a plain piece of cloth which
is the same on both sides; or a piece of cloth marked with stripes or flowers;
or the teat of a sheep bought for breeding; or the back of a sheep bought
for killing; or who tries the taste of things for eating and drinking and
who later makes a purchase, has no option of inspection.
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It is sufficient to see a sample produced of things sold by sample.
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If the thing sold proves to be inferior to the sample, the purchaser has
an option of taking or rejecting it.
Example: If such things as corn or oil, and linen or wool manufactured
so as to conform to a set standard of excellence are bought after inspecting
a sample thereof, and are later found not to come up to sample, the purchaser
has an option.
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In the purchase of real property such as an inn or a house, every room
must be inspected. If the rooms are all of one type, however, it is sufficient
to inspect one of the rooms.
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When things which are dissimilar to each other are purchased en bloc, each
one must be inspected separately.
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If the purchaser buys things which are dissimilar from each other en bloc
and inspects some of them and fails to inspect the rest, and,upon inspection
of the latter, is dissatisfied therewith, he has the option of accepting
or rejecting the whole lot. He may not take those with which he is satisfied
and reject the rest.
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A blind person may validly buy and sell, but if he buys property the description
of which is unknown to him, he has an option. Example:- If he buys a house
the description of which is unknown to him, he has an option, upon learning
the description thereof, of accepting or rejecting.
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A blind person has no option if he purchases a thing which has been described
to him beforehand.
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If a blind person touches anything the nature of which can be ascertained
by means of the sense of touch, and smells things the nature of which can
be ascertained by means of the sense of smell, and tastes things the nature
of which can be ascertained by means of the sense of taste, his right of
option is destroyed. That is to say, if he touches or smells such things
and afterwards purchases them, the sale is valid and irrevocable.
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If a person who has inspected a piece of property with a view to purchase
later buys such property knowing it is the property in question, such person
has no option of inspection. Should any change have been made in such property,
however such person has an option.
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Inspection by an agent authorised to buy or receive the thing sold, is
equivalent to inspection by the principal.
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Inspection by a messenger, that is to say, a person sent, who merely has
the power of collecting and dispatching the thing sold, does not destroy
the purchaser's option of inspection.
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If the purchaser deals with the thing sold in any way indicative of a right
of ownership, his option of inspection is destroyed.
Section 6: Option for Defect.
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In an unconditional sale, the thing sold must be free from any defect.
that is to say, although property is sold without stipulating that it shall
be free from faults, and without stating whether it is sound, or bad, or
defective, or free from fault, such property nevertheless must be sound
and free from defect.
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If some defect of long standing is revealed upon the unconditional sale
of any piece of property, the purchaser has the option of rejecting it
or accepting it for the fixed price. He cannot keep the property and reduce
the price on account of the defect. This is called the Option of Defect.
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A defect consists of any faults which, in the opinion of persons competent
to judge, cause a depreciation in the price of the property.
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A defect of long standing is a fault which existed while the thing sold
was in the possession of the vendor.
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Any defect which occurs in the thing sold after sale and before delivery,
while in the possession of the vendor, is considered a defect of long standing
and justifies rejection.
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If the vendor declares at the time of sale that there is a defect in the
thing sold, and the purchaser accepts the thing sold with the defect, he
has no option on account of such defect.
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If the vendor sells property subject to the condition that he shall be
free from any claim on account of any defect, the purchaser has no option
on account of the defect found therein.
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If a purchaser buys property, including all defects, he cannot make any
claim on account of any defect found therein.
Example: If a purchaser buys an animal with all faults of any description
whatsoever whether blind, lame, or worthless, he cannot return such animal
asserting that it had a defect of long standing.
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If the purchaser after becoming aware of a defect in the thing sold performs
any act indicative of the exercise of a right of ownership, he loses his
option of defect.
Example: The purchaser, after becoming aware of the existence of a defect
of long standing in the thing sold, offers such thing for sale. He is taken
to have acquiesced therein and cannot reject the thing sold.
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If a defect appears in the thing sold while in the possession of the purchaser,
and it proves to be a defect of long standing, the purchaser has no right
to return the thing sold to the vendor, but has a right to claim a reduction
in the price.
Example: If the purchaser discovers a defect of long standing in the thing
he has purchased, such as a piece of cloth which after being cut up and
measured is found to rotten and frayed, he cannot return the same, because
by cutting it he caused a fresh defect. He can, however, claim a reduction
in the price on account of the defect.
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The amount of the reduction in the price is ascertained by a report drawn
up by impartial experts. With this object in view, the value of the thing
sold when sound and also when defective is ascertained, and a reduction
is made from the fixed price on the basis of the difference between the
two prices.
Example: A purchaser after buying a roll of cloth for sixty piastres and
cutting it up and measuring it becomes aware of a defect of long standing.
Experts estimate the value of such property at sixty piastres when sound
and with the defect of long standing at forty-five piastres. The reduction
to be made in the price is fifteen piastres, and the purchaser has a right
to make a claim for that amount. If the expert report that the VAlue of
such property when sound was eighty piastres and with the defect sixty
piastres, the difference of twenty piastres between the two prices, that
is to say a fourth of eighty piastres or a quarter of the fixed price may
be claimed by the purchaser. If the value of the cloth when sound is reported
to be fifty piastres and with the defect forty piastres, the difference
of ten piastres between the two, that is to say, one fifth of the fixed
price, is considered to be amount to be deducted from the price .
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If a defect of recent origin disappears, a defect of long standing still
justifies rejection.
Example: Horse is purchased and falls sick while in the possession of the
purchaser. Thereupon a defect of long standing is revealed. The purchaser
is unable to return the horse, but can obtain a reduction in the price.
If the animal recovers from the illness, the purchaser can return the horse
to the vendor on account of the defect of long standing.
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If the vendor agrees to take back the thing sold after the occurrence of
a defect while in the possession of the purchaser which reveals a defect
of a long standing, and should there be nothing to prevent its return,
the purchaser cannot claim a reduction in price, but must either return
the thing sold or keep it and pay the full price. Should the purchaser
sell the property to some third person after becoming aware of the existence
of the defect of long standing, he is in no way entitled to claim a reduction
of price.
Example: A purchaser buys a roll of linen and cuts it up to make shirts.
He then finds it to be defective and sells it. He cannot claim any reduction
of the price from the vendor. The reason for this is that while the vendor
may state that he would take back the stuff with the defect of recent origin,
that is to say, cut up, the sale thereof by the purchaser is tantamount
to an adoption of the defect.
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Any increase, that is to say, any addition of property belonging to the
purchaser to the thing sold makes any return thereof impossible.
Example: A purchaser adds certain sewing or dyeing with his own thread
or colour to a piece of cloth; or the purchaser of a piece of land plants
trees therein. such acts prevent the return of the thing sold.
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If there is anything to prevent the return of the thing sold, the vendor
cannot receive back the defective thing sold, even though he is willing
to do so, but must make a reduction in price. If the purchaser becomes
aware of the existence of a defect of long standing in the property in
question and sells the same, he can demand a reduction in price from the
vendor.
Example: A purchaser buys a roll of linen to make into shirts. After measuring
them and sewing them, he finds that the linen is defective. He cannot ask
for the linen to be taken back, even though the vendor is prepared to so.
The vendor is obliged to make a reduction in the price. If the purchaser
sells the shirts, he can recover the reduction in the price from the vendor.
The reason for this is that the thread belonging to the purchaser has been
added to the thing sold and prevents its return. The vendor cannot say
that he will take the thing back after it has been cut up and sewn, and
the purchaser is not considered to have kept back the thing sold from the
vendor.
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Before taking delivery, the purchaser may reject the whole of of a number
of things bought en bloc, if some of them prove to be defective, or he
may elect to take them for the fixed price. He cannot reject the things
which are defective and keep the rest. If the defect becomes apparent after
delivery, and no loss is incurred by separation, he can return that portion
in which the defect has appeared, against a proportionate share of the
fixed price when sound sound. He cannot return the whole unless the vendor
agrees thereto. If any loss is caused by the separation, however, he may
return or keep the whole amount at the fixed price.
Example: If one of the two fezzes bought for forty piastres proves to be
defective before delivery, both can be rejected together. If one of them
proves to be defective after delivery, he can return that fez, deducting
the value of such fez when sound from the forty piastres. If he has bought
a pair of shoes, however, and after delivery, on of them turns out to be
defective, he can return them both and can demand the return of the whole
of his money.
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If a person who has bought and taken delivery of a definite number of things
estimated by measure of capacity or weight and which are of one type, finds
a portion thereof to be defective, he has the option of accepting or rejecting
the whole number.
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If cereals such as wheat prove to be earthy, though to an extent considered
by custom to be negligible, the sale is valid and irrevocable. If, however,
such cereals are considered by local opinion to be positively defective,
the purchaser has an option.
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If such things as eggs and nuts prove to be bad and defective but not to
a greater extent than that sanctioned by custom, such as three per cent,
the sale is valid. If the defect is considerable, however, such as ten
per cent, the sale is invalid and the purchaser can return the whole amount
to the vendor and recover the entire price.
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If the thing sold appears to be in such a state that no benefit can ever
be derived therefrom, the sale is void and the purchaser can recover the
whole of the price. Example:- If eggs which have been bought prove to be
so bad that they are useless, the purchaser can recover the whole of his
money.
Section 7: Misrepresentation and Deceit
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The existence of flagrant misrepresentation in a sale, but without actual
deceit, does not enable the person who has been the victim of such misrepresentation
to cancel the sale. But if the sale of the property of orphans is tainted
by flagrant misrepresentation, although there is no actual deceit, such
sale is invalid. Property belonging to a pious foundation and to the treasury
is treated on the same basis as the property of orphans.
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If one of the two parties to the sale deceives the other, and flagrant
misrepresentation is also proved to be present in the sale, the person
so deceived can cancel the sale.
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If the person who is the victim of flagrant misrepresentation dies, no
right to an action for deceit is transmitted to his heirs.
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If the purchaser who is the victim of deceit becomes aware that the sale
is tainted by flagrant misrepresentation and deals with the thing sold
in any manner indicative of a right of ownership, he has no right whatsoever
to cancel such sale.
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If a thing sold which has been bought as a result of deceit or flagrant
misrepresentation is destroyed, or perishes, or becomes defective, or if
something new is added, such as a building to apiece of land, the victim
of such misrepresentation has no right to cancel the sale.
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