The role of human will and rationality in the psychological formation of the ‘aqd

By locating the ‘aqd in the space of Islamic din, its underlying values have been related to the condition of the believer who is ‘subject to the rule’ in the world created by God and performs contractual duties in a reality where ‘man and God, and man and man, are linked to one another’ (see foregoing, Rosen, 2000, p.

On the relevance of the niyya, the manuals of Muslim jurisprudence quote repeatedly one of the most famous ahddith in the field of civil transactions; namely, ‘actions are defined by intentions, and to every person what he intends (innamd al-a‘mdl bil-niyydt wa-innamd li-kull imri'in md nawd) (Powers, 2006, p. 1).¹⁰ However, as we will see, although niyya is the most frequent word in the treatises for ‘intention,’ a plurality of other terms (qasd, irada, and nda) are used in the context of the psychological formation of the con­tract. In addition, the significance of the intention varies greatly from acts of worship (‘ibadat) to worldly transactions (mu‘amalat) (as already noted in section 2.3). In this second category, it also assumes different levels of impor­tance in the four Sunni schools, for which the dictum ‘actions are defined by intentions’ (innama al-a‘mal bil-niyyat) ‘serves as a prism directing Muslim legal thought in a wide array of directions, reflecting a rich understanding of intentions, actions, and the human agents who produce - and are produced by - them’ (Powers, 2006, p. 5) Indeed, the role of intention and rationality in the formation of the contract is one of the most widely debated topics in the tradition offiqh, giving rise to that normative pluralism made up of differences and divergences which is peculiar to the acoustic space of Islam.

At the same time, the topic raises fundamental, comparative issues with the Western legal tradition. Maintaining a dialectical approach towards the totality (3L) of the ‘aqd, the following pages will investigate these issues by moving from the doctrines of cause (civil law) and consideration (common law) in relation to the Islamic concepts of ‘illa and sabab (section 3.4.1) to the idea of contractual freedom in Western law and Muslim fiqh (section 3.4.2). Later, the book will focus on the various psychological elements analysed by Muslim scholars: will (irada), intention (niyya), animus contrahendi (gasd), choice (khiyar), and individual consent (rida) (section 3.4.3); here, a radical divergence will be highlighted between a tendency to ‘objectivism’ (for Safi‘is and Hanafis) and ‘subjectivism’ (for Malikis and Hanbalis). To conclude, a final section will be dedicated to the impact on the contract of the vices of the consent (duress, ikrah, fraud, tadlis, and error,ghalat) and their relation to the doctrine of al-khiyar (section 3.4.4).

3.4.1. Autonomie de la volonte and the ‘reason’ underlying the contract: ‘illa and sabab in comparison with the civilian cause and the consideration of common law

As previously remarked (section 3.3), all legal traditions translate ‘facts’ into ‘legal facts’ by means of their own underlying ‘values.’

In the civil law tradition, the doctrine of the autonomie de la volonte lies at the very heart of contract-consent. Originating in the context of private international law at the end of the 19th century, this doctrine soon gained access to the national legal systems of continental Europe as the core of ‘juridi­cal individualism,’ designating ‘the power that the will enjoys of giving itself its own laws’ (Ranouil, 1980, p. 9; my translation). Its underlying assump­tions were the promotion of the trust in a ‘sovereign [human] will, creator of law’ (ibidem, p. 15); the faith in the autonomy of each human being as an independent entity; the utter conviction that the human will, source and measure of any individual rights, is the ‘organ creating law.’ In the field of contractual relations, the autonomie de la volonte underpins the core nature of the contract in civil law as an agreement which is source of obligations: the convergence of two or more human free wills in the mutual consent being the ‘origin,’ the ‘source’ of any valid right and obligation (for the historical origin of contractual freedom in modern Europe from the 16th century, see Decock, 2013).

Moving now to the city of the ‘aqd, can we find in the works of Muslim jurists anything comparable to the civilian cause or to the consideration of common law? I think not.

Since God is the beholder of any right (haqq), His will has complete supremacy on the agency of the Muslim believer; hence, no autonomous cen­tre of power can compete in the ‘creation’ of norms (civil law), nor is the exchange itself (common law) sufficient for the enforceability of promises, beyond God’s authoritative intent. From the juristic perspective of Islamic law, the ‘aqd is part of God’s creation, which is ‘acquired’ and ‘performed’ (kasb) by the human being (hence, the notion of a contract-performance).

What can be found in Muslim jurisprudence, rather, are two concepts that have already been mentioned in Chapter 2: ‘illa (‘preliminary cause’) and sabab (pl. asbdb), the ‘immediate cause’ created by God at the very moment of the action (Brunschvig, 1976a, p. 191). But their ‘value’ is radically distant from (and not comparable to) the idea of cause of civil law (apart from a literal translation, that can mislead the interpreter). ‘Illa and sabab belong to the domain of usul al-fiqh, where they are applied, respectively,

• to admit analogy (qiyds) in describing the connections among a qualification (hukm) and a novel set of entitlements (huquq) in equivalent circumstances: ‘illa constitutes ‘the relevant similarity which justifies the transference of the judgement from the precedent to the new case’ (Hallaq, 1985-86, p. ⁸⁶⁾;

• while rabab indicates the ‘efficient cause’ that determines the action: asbdb as-sardV are ‘the objects or the circumstances to whose existence or appear­ance the legal institutions, the duties created or sanctioned by the Law, are linked’ (Brunschvig, 1976b, p. 44).

If no direct relationship can be found between the notions of ‘illa and sabab as the ‘reason’ of the action with the civilian cause (nor with the consideration of common law), further insights into the ‘values’ of Muslim fiqh can be obtained thanks to a comparison of the notion of ‘illa with the Western concept of ratio legis. Van Ess warns the Western traveller that

[t]he equation [ ‘illa = ratio legis] has the disadvantage of insinuating the idea that the ‘illa might help to discover the reason God had in mind when promulgating the law.... [T]he ‘illa only generates the quali­fication by the fact that the legislator (i.e. God) uses it for this (mujib lil-hukm bi-ja‘l as-sdri‘)... God’s will is no longer bound to a rational structure standing of itself, and the internal reason for his decisions and commands is thereby removed from the comprehension of man; he acts voluntarily, without a specific ratio legis.

(Van Ess, 1970, p. 36, note 74)

As far as the idea of sabab is concerned, an alteration of its original meaning was brought about by its re-interpretation as ‘objective cause’ in the Hanafi- inspired (but deeply affected by the French model of codification) Ottoman Civil Code, the Majalla, in Arts. 97 and 1248, and in other codifications of Muslim countries of the 20th century (see later, Chapter 4).¹²

Art. 97. No one is to acquire the property of another without a legal cause

(ld yajuz li ahad an ya'khudha mdl ahad bild sabab sar‘t).

Art. 1248. The legal causes of possession (asbdb al-tamalluk) are three in number. First, the transfer of property from one owner to another: this is so in sale (al-bay^ and donation (al-hiba). Second, a person might be a successor kin of another: this is the case of inheritance (al-irth). Third, one might acquire a permissible object which has no owner... such as in collecting rain-water or hunting.

(quoted in Arabi, 1997, p. 203, note 8)

In remarking the distance between Muslim fiqh and the Western legal tradi­tion, Chafik Chehata states that ‘a theory of the cause [in the civil law sense] doesn’t exist at all’ (Chehata, 1969, p. 67; my translation); rather, it is replaced by a theory of equivalence in the performance of the ‘aqd (ibidem). On the point, the position by Chehata can be fully supported by referring to the Hanafi scholar al-Kasani (d. 587/1191):

Equality... is the aim of the contracting parties (al-musawat... matlub al-‘aqidayn).... The entirety of the sold object is to be considered equivalent to the entirety of the price (kull al-mabi‘ yu‘tabar muqabalan bi-kullal-thaman), and the entirety of the price equivalent to the entirety of the sold object. Any increment (ziyada), whether in price or in the object which has no corresponding equivalent, would be an additional value without compensation... and this is the meaning of usury (riba). (Abu Bakr al-Kasani, Badai al-Sanaif Tartib al-Sara’i‘, Vol.

Vol. 5, 285; quoted in Arabi, 1997, p. 208)

Following Chehata, we may say that the cause and the consideration of Western legal languages are replaced in Islamic law by the ‘equality of the counter-values,’ a principle that will shed further light on the prohibition of riba (see later, section 3.5.4). In fact, as clarified by Saleh, there is no theory of ‘inducing motive’ as valid causa in Muslim fiqh, in the sense of ‘the sum of all external and internal motives which induce a party to conclude a legal act as well as the aim which is intended to be achieved through the legal act’ (Saleh, 1992b, p. 116): ‘the word cause (sabab), understood as inducing motive, is seldom found in the classical law treatises. What is found instead is niyya or qasd, that is, the intention of the contracting parties in bilateral contracts and of the one party in unilateral undertakings’ (ibidem, p. 121). These concepts will be further investigated in section 3.4.3.

3.4.2. Freedom of contract, nominate contracts, and attached stipulations

Closely related to the matter of the autonomie de la volonte is the existence (or not) of a doctrine of contractual freedom in Islamic contract law (the former more related to the source, the creation of contract rules; the latter, to the contents of parties’ rights). On the topic of contractual freedom, fiqh shows a variety of discordant positions. On the matter Yanagihashi notes that

[i] t is difficult to answer the question whether Islamic law admits contrac­tual liberty. On the one hand, the Shafi‘i jurist al-Muzani (d. 264/877-8) quotes his master, al-Shafi‘i (d. 204/820), as saying, “We have dem­onstrated that God has legalised sales except those that He prohibited through His Messenger ad those that are analogised to them”.... In fact, there are many cases in which a customarily practiced contract that is not mentioned in orthodox legal manuals was validated. For example, the Hanafi jurist Ibn Maza (d. 616/1219-20) refers to a form of waqf practiced in the mountainous region near Nihavand (in western Iran), in which seeds are lent to the poor, who are to sow them and return the same quantity of seed as they borrowed, earning for themselves the remaining produce.... When asked about the validity of a labour con­tract concluded between the owner of a mountain and a planter, by vir­tue of which the former charged the latter with the planting and the taking care of trees, in return for which the latter was to acquire one half of the mountain - the Maliki jurist Ibn Rushd al-Jadd (d. 520/1126) issued a fatwa invalidating it because of ignorance, not because it failed to meet the requirements of any of the nominate contracts.

(Yanagihashi, 2013)

The madhahib show various degrees of favour towards the enforceability of contractual relations that fall outside the list of nominate contracts recognised by the tradition. While no general and systematic theory of the ‘aqd can be found in Muslim jurisprudence, the classical sources proceed by reference to a list of nominate contracts, whose prototype is the sale (bay‘) as the model of any commutative exchange (Zahraa and Mahmor, 2001). The centrality of the contract of bay‘ explains why ‘[i]n most Islamic legal manuals, principles governing contracts in general are explained in detail primarily in the chapter on sales, while other nominate contracts are explained in separate chapters’ (Yanagihashi, 2013; see also Rayner, 1991, p. 91).

The system used by the jurists to categorize the nominate contracts was to determine whether, in any given contract, right passed in ownership or possession, and whether consideration passed or otherwise. The basic nominate contracts number four:

(1) Bay‘ (sale): where right of ownership passes for consideration (tamlik al-‘ayn bi-‘iwad);

(2) Hiba (gift): where right of ownership passes without consideration (tamlik al-‘ayn bila ‘iwad);

(3) Ijara (hire): where transfer of possession occurs for consideration;

(4) ‘Ariya (loan): where transfer of possession occurs without consideration.

Other nominate contracts include those of Salam (a contract for delivery with prepayment), Mudaraba ([sleeping] partnership agree­ment; equity sharing between bank and client), Sharika (partnership), mortgage (Rahn), Ju‘ala, Wadi‘a(deposit), al-Muzara‘a... and ‘Umra. (Rayner, 1991, pp. 100-101)

In addition to this categorisation, in their ways of ‘walking’ (dhahab, verbal noun) through the city of the ‘aqd, Muslim scholars provide guidelines about ‘how far, if at all,... the parties [may] vary this rigid scheme [i.e., the strict defining of each contract in terms of its purpose and effect] by introducing agreed special terms as appendages to the particular nominate contracts they are purporting to conclude’ (Coulson, 1984, p. 51). Hence, the extent to which fiqh admits freedom of contract may be deduced from the attitude of Muslim scholarship on the admission of new types of contracts or of varia- tions/additions to named contracts.¹³ In general, they appeared to maintain a narrow view on the admissibility of new contracts, except for the Hanbalis.

The early jurists were concerned that all contracts were free from sus­picion of usury and uncertainty, characteristics which served to nullify any transaction. As a result of this, they decided that individuals should contract according to the rules of nominate contracts, and thus, not gen­erally free to establish or create any new and possibly illegal stipulations. Nevertheless, the Hanbali jurists constituted an exception, for they per­mitted freedom of contract under the doctrine of ibdha: non-restriction was, for the Hanbalis, the general rule.

(El-Hassan, 1985, p. 54)¹⁴

In this sense, the Hanbalis claim that the ‘only condition required... for the validity of any contract is the mutual consent of the contracting par­ties’ (Rayner, 1991, p. 94), and support the ‘reasonable presumption that all contracts are valid subject to their being expressly forbidden by rule of law, or they contain voidable stipulations, or contravene Islamic prohibitions (especially those of Ribd, Maysir and Gharar), or public policy or morals’ (ibidem, p. 95). As a result, they validate any innominate contract, provided that it conforms with the principle of liberty to contract within the limits of divine law and the principle of sanctity of contracts (pacta sunt servanda) (Saleh, 1998).

Nevertheless, the Hanbali position was strongly opposed by the other Sunni schools (Hanafi, Maliki, Safi‘i) following the Sunna of the Prophet: ‘How can men stipulate conditions which are not in the book of Allah? All stipulations which are not in the book of Allah are invalid, be they a hundred in num­ber. Allah’s judgment alone is true and His stipulations alone are binding’ (reported in El-Hassan, 1985, p. 57; see also Coulson, 1984, pp. 100-102). This resistance to contractual freedom, as we will note when discussing the topic of hiyal in Chapter 4, was mitigated in the interplay between theory and practice through the elaboration of legal stratagems as a means to orient the believer’s performance of God’s will in the world of commercial affairs.

Another field linked to ‘the question of contractual liberty is that of the validity of clauses (surut, sing. sart) that may alter the terms and conditions of a contract’ (Yanagihashi, 2013). The admissibility of conditions, stipulations, clauses attached to a [nominate] contract (surut al-muqtarina bi-l-‘aqd) rep­resents further evidence of the rich normative pluralism embedded in Muslim fiqh (for the Hanafi school, see Chehata, 1969, pp. 104-109; for a compara­tive analysis of the schools, Linant de Bellefonds, 1965, pp. 224-242; Rayner, 1991, pp. 352-363). On this matter, the approach of the Sunni schools to contractual freedom and the validity of attached stipulations can be summa­rized through Diagram 1, as follows.

Safi'is Hanafis Malikis Hanbalis

RESTRICTIVE APPROACH TO CONTRACTUAL FREEDOM/ATTACHED CLAUSES LIBERAL APPROACH

Diagram 1 Theoretical approaches of the Sunni schools to contractual freedom (author’s elaboration)

In general, Safi‘is and Hanafis appear more restrictive, whereas Hanbalis and Malikis are more lenient with regard to the admissibility of attached clauses. In brief, for the Hanafis and the Safi’is, the attached stipulations are generally void, with the validity being the exception; for the Malikis and the Hanbalis, by contrast, the surut are generally valid, with the invalidity being an exception. In particular, the Hanafis show particular strictness on the surut al-muqtarina bi-l-‘aqd, distinguishing four categories, as formulated in the works by al-Sarakhsi (d. 490/1097) and al-Kasani (d. 587/1191): (1) the conditions inherent in the nature of the contract (sart yaqtadih al-‘aqd); (2) the conditions appropriate to the contract (sart muld'im li'-lCaqd); (3) the customary conditions (sart muta‘draf) - which the Hanafis consider valid only on the ground of istihsdn (equity); and (4) the invalid conditions (sart fdsid) (Arabi, 1998, p. 29).

3.4.3. Psychological components of the ‘aqd: will (irada), intention (niyya), animus contrahendi (qasd), choice (khiyar), and individual consent (rida)

The literature of fiqh refers to a variety of psychological dimensions for the formation of the ‘aqd. This variety is relevant for our investigation for three reasons. First, it sheds supplementary light upon the interaction between human will and rationality in the formation of the Islamic contract. Second, it gives further evidence of the inherent normative pluralism that belongs to the Islamic legal tradition. Third, it will lead our discussion to deal more in depth with the nature of the agreement (tarddi, ‘mutual assent’ in the translation by Hamid, 1977) (section 3.5.2) as an essential element (rukn) of the ‘aqd.

Muslim jurisprudence employs different terms to refer to the internal dimension of the agreement; namely, will (irdda); intent/intention/motive (niyya); animus contrahendi (gasd); choice/option (khiydr); and (personal) consent or approval of the contract (ridd).

Preliminary attention, in the context of fiqh as manifestation of Islamic din, must be addressed to the notion of human will and its precise role in the for­mation of the contract; interestingly, if, with regard to the Hanafis, Chehata can affirm that ‘the term irdda, utilised in modern times to signify will, cannot be found in Saybani’ (Chehata, 1971, p. 164; my translation), more in gen­eral, the concept does not entail any similarity with the implications related to the autonomie de la volonte of the civil law tradition. Irada in classical treatises simply indicates ‘the faculty of taking the decision’ (here, to enter the con­tract), never the human will as ‘source’ of contractual obligations. Moreover, if this faculty, linked to man’s rationality, finds its expression in the niyya as motive of the action (‘ il faut que cette volonte soit dirigee dans un sens deter­mine, que l'auteur aiteu le dessein, al-niyya, d'accomplir tel acte enparticulier:' Linant de Bellefonds, 1965, p. 70), this should not lead the interpreter to assume that the intention of the parties defines the nature of the Islamic con­tract as an act of human autonomy. Rather, the presence of a valid niyya con­firms the performance of the act as devoted towards God, making the action itself beneficial both between man and man, and man and God. Accordingly, the term is employed with a broad variation of conceptual nuances among the Sunni schools in requiring a good intention (or not) for the validity of the contract (according to patterns of ‘subjectivism’ and ‘objectivism’ that respec­tively privilege the ‘man to God’ or the ‘man to man’ relation in the concep­tion of the contract-performance as God’s will: see as follows).

In fact, as we have already noticed in section 2.3, if the niyya constitutes an essential element for the action in the field of ‘ibadat (acts of worship), its relevance in the field of mu‘amalat (human transactions) varies greatly among the madhahib. The divide between ‘ibadat and mu‘amalat in Muslim juris­prudence is underlined by Umar F. Abd-Allah (2008) by referring to the ‘vol­untarism’ of the former in contrast to the ‘rationalism’ (the adherence of the intellect to the Law) underpinning the latter. Hence, as seen before, while an action can be legally valid just by complying with the Law (by ‘way of intel­lect’), it requires proper intention (a ‘way of will’) to fully become an act of devotion and worship towards God.

Ritual acts require a good intention, while non-ritual acts require no conscious intention at all [this is, indeed, a very contentious point among the madhahib: see below]. Non-ritual acts need only conform to the for­mal provisions of the law, although any valid non-ritual act can be trans­formed into an act of worship in the sight of God if it is performed with a religious intention. Thus, a commercial enterprise undertaken with the aim of alleviating poverty for God’s sake would be elevated to an act of immense religious merit.

(Abd-Allah, 2008, p. 241)

The role of the niyya is further clarified by the influential Maliki jurist Sihab al-Din al-Qarafi (d. 684/1285) in his al-Umniyya ft Idrak al-Niyya.

[Qarafi] observes that legal commands are of two types: first, those for which the simple performance of the commanded act achieves the benefit of the act (the mu‘amalat: e.g., payment of a debt, returning entrusted property, and forwarding support payments to a spouse or relative); sec­ond, those that external performance of which does not alone achieve the benefit for which God commanded the act (the ‘ibadat: e.g. prayer, ritual purification, fasting, the rites of the hajj). Intention, for Qarafi, constitutes the distinction: compliance with rules of the first type, regard­less of the intention, benefits someone other than the actor immediately [in a ‘man to man’ relation] and may, if intended as an act of obedience or worship, also bring reward in the afterlife [hence, in a ‘man to God’ relation]. Compliance with rules of the second type brings benefit to the actor, primarily in the hereafter, and only if intention is present and proper. Niyya on this view is that which makes a given action one of obedience and worship, making possible divine reward. The ‘ibadat have no other function, while the mu‘amalat do.

(Powers, 2006, p. 9; my italics)

As noted by Jackson, ‘it is not al-Qarafi’s contention that acts of the first cat­egory [mu‘amalat] are not religious acts. On the contrary, these should be performed with the intention of worshipping God and winning salvation in the Hereafter. His point, however, it that the rules of the first category are designed first and foremost for the benefit of man here and now. As such, whenever they are complied with, man benefits, even if God does not’ (1996, pp. 201-202). The overlap between the conception of the contract as a ‘man to man’ and/or a ‘man to God’ relation in Islamic din as Muslim bios (see again, on this point, section 2.3) can shed further light upon the divergences among the madhahib in their interpretation of the need of a good niyya within the realm of mu‘amalat. In fact, beyond the divide between ‘ibadat (ritual) and mu‘amalat (non-ritual) that is subscribed to by all the juristic schools, when dealing with human transactions (mu‘amalat) stricto sensu (that is to say, as human actions not directly aimed at the benefit in the hereafter), the relevance given to the niyya varies enormously: from the ‘objectivism’ of Safi‘is and Hanafis (with a ‘secular’ prevalence of the outer declaration over the inner intention), the attitude shifts towards ‘subjectivism’ in the Maliki and Hanbali schools (bearing a more implicit ‘religious’ connotation for the validity of the contract).

• Safi‘is andHanafis: objectivism

The marginalisation of the subjective intent in commercial transactions when the intent is not made manifest in the terms of the contract constitutes the rule for Safi‘is and Hanafis.

The Safi‘is always give precedence to the ‘declared will over the internal will. For the Safi‘is to found legal relations... on such a secret psychological phenomenon as the internal will means creating in the economic and social life arbitrariness and therefore injustice’ (Linant de Bellefonds, 1965, p. 125; my translation). ‘Al-Shafi‘i himself left no doubt about his view on that issue in a famous section of al-Umm.... Contracts are lawful in view of their apparent validity. The unlawful intention of the parties is reprehensible (makruh), but does not cancel their act, unless expressed in the act’ (Saleh, 1992b, p. 123). Hence, whereas an illicit intent made express in the contract invalidates the transaction, an implicit and undisclosed niyya, though religiously reprehensi­ble (makruh), has no legal consequence on its validity.¹⁵

As far as the Hanafi school is concerned, their attitude is very similar to that of the Safi‘is, with a general prevalence of the declared will over the internal will. Thus, the famous Hanafi saying al ‘ibra bi-l-ma‘dni ld bi-l-alfdz wa-l- mabdm (‘[in contractual stipulations] what has to be considered is the mean­ing [and] not the words or phrases’) must be interpreted not in the sense of the prevalence of the inner intention over the external declaration but of the need to give the words their common, usual sense, as established by cus­toms, and not their literal or etymological meaning. In fact, Qadi Khan, in his commentary (Sart) to Djdmi ‘as Saghir by Al-Saybani, specifies that ‘[w]hat must be considered in the fulfilment of the orders of God is the intention, but, in the worldly dimension, it’s the words and the sentences’ (quoted by Linant de Bellefonds, 1958a, p. 512). From the perspective of the Hanafis, according to Chehata, the motive (niyya, which he defines as ‘the thought underlining the declaration:’ 1971, p. 173 and p. 208, note 2) represents a marginal element in the formation of the contract. In his Al-Asbdh wal- Nazd'ir (‘The Resemblances and the Correspondences’), the Hanafi scholar Ibn Nujaym (d. 970/1563) quotes the usul author Al-Taftazani (8th century H.) (‘the niyya is the intention - qasd -, in the act, of obeying and approach­ing God,’ Al-Talwth) and the judge Al-Baydani (‘the niyya is the will directed towards the act - aiming at pleasing God and obeying his rules’) (reported by Chehata, 1971, p. 207; my translation). In these texts, the relevance of the niyya is reduced to the ‘will directed towards performing a religious duty’ (Schacht, 1964, p. 116); that is to say, an essential element for the acts of wor­ship (‘ibdddt man to God relations).

By contrast, the concept of niyya has a marginal role in worldly transactions (mu‘dmaldt: man to man relations). For the Hanafis, it remains simply the internal purpose of the act, which must be investigated only in case of ambigu­ous declarations. In all other cases, the parties are held to their statements, and ‘when the ultimate aim of the contracting party is not apparent either from the terms of the contract or from the prevalent usage of the object under contract, the Hanafis (and Safi‘is) ignore ulterior motivation, which has no legal effect on the validity of the transaction’ (Arabi, 1997, p. 215). In brief, the determining motive is marginalised by their doctrine when not ‘materially’ declared in the terms of the contract.¹⁶ Specifically for the Hanafi school, the position is shared by al-Tahawi (d. 321/933) and al-Kasani (d. 587/1191) and clearly exemplified by the usurious sale of ‘na (bay‘al-‘ina). Al-Tahawi: ‘The vendor of grape juice may sell it with no fear - without making certain that the buyer will not make wine from it. For the juice of grapes is legally per­missible (haldl) and its sale is as permissible as that of any permissible object whose vendor is not supposed to inquire about what the buyer does with it’ (al-Mukhtasar). Al-Kasani: ‘For Abu Hanifa the transport itself does not constitute disobedience (ma‘siya) [of the law], as the transport of wine for medicinal purpose is permissible. Hence the [mere] transport of wine does not necessarily cause the act of disobedience, which consists in its consumption’ (Bada'i‘) (both quotations can be found in Arabi, 1997, p. 215).

The ‘ina sale has the following structure: one buys from another an item while postponing payment of the price; then the buyer sells back the same item to the vendor at a lower price than the first; he thus receives a sum of money which he will have to pay back later with an increment. The procedure is designed to circumvent the prohibition of usury, riba, by Qur’anic and Prophetic dicta. Yet, despite the illicit aim of the parties - their motive being usurious - the fact that the motive is not mentioned in the contract makes it of no consequence and the contract is valid for the two companions [of Abu Hanifa, Abu Yusuf and al-Saybani] and in the Shafi‘i school.

(Arabi, 1997, p. 216; see also later, Chapter 4)

Regarding the psychological formation of the contract the Hanafis collocate next to the niyya the concepts of qasd, animus contrahendi or ‘intention to contract.’

While the niyya corresponds to the ultimate motive of the action - the purpose for which the act is performed - in the classical texts, the word qasd seems to have the narrower sense of the consciousness of the action of con­tracting - i.e. the awareness of being bound and the will in itself to be bound (animus contrahendi), considered separately from the purposive reason for the action. An example may help to distinguish the two notions. Two parents want to avoid the inheritance tax, which is applied for the transfer of the prop­erty of their house to their son, as heir; for this reason (niyya), they decide to sell the house to their son for a much inferior price to the real value of the estate. The rational intent to sell the house (considered in itself, without the reference to the aim of avoiding the application of inheritance tax) is the qasd.

Once again, it is important to note that this ‘intention’ (either as niyya or qasd) is not the ‘will’ as ‘source of promises or obligations’ known in the Western legal tradition. The qasd is simply the ‘intention to make the act effec­tive in law’ (Chehata, 1971, p. 187; my translation) or, rather, the ‘intention to declare in order to provoke an effect [established] in law [hukm]' (ibidem, p. 188), not the ‘will, as creator of rights.’ This radically differentiates Islamic law from the tradition of civil law and its idea of the autonomie de la volonte: ‘[t]he intention is not the will that creates the act as in our modern law. In Islamic law, it simply promotes the declaration following reflection.... And it is the declaration itself that brings about legal effects’ (ibidem, pp. 168-169) in the performance of God’s will. Hence, when the ‘aql is lacking (due to mad­ness, interdiction, or the person being underage) or there is no qasd in pro­voking an effect at law (hukm) (words said under duress or fraud; in sleep; in jest, jocandi causa, hazl), the act does not exist (it is void, batil) (see Chehata, 1971, pp. 247-249).

According to the Hanafi doctrine, the presence of ‘aql and qasd leads to the existence of a valid khiydr (‘choice,’ ‘option’ to contract), and then, to the ‘personal, unilateral consent,’ or ‘approval,’ ridd (defined by Al-Taftazani as ‘the result of the ikhtiydr’) of the contract. As far as the ridd is concerned, the Hanafis do not consider it as a prerequisite for the existence of the con­tract, but rather, for its validity. In other words, it does not appear to be an essential/constitutive element (rukn) of the contract, since even the vices of mistake or misrepresentation do not prevent its existence, though it may be open to rescission due to invalidity (violation of required condition, sart) (Chehata, 1970b, pp. 129-130) (for more details about vitiating factors and the role of ikhtiydr see section 3.4.4 in this chapter). As Vogel notes, ‘when the term “lack of consent” (ridd) is used, it expresses only a finding that a contract, though existent, was formed in illegal circumstances’ (Vogel, 2006, p. 32). The limited role of consent (ridd) for the Hanafis reflects their high level of objectivism in the evaluation of the declarations, where the expressed statements prevail over the inner will of the contracting parties. This objectiv­ism is testament to an empirical conception of the contract as a concrete set of declarations (offer and acceptance) determining a new setting of properties. As this book will clarify later: ‘[t]he will of the declarant plays no role whatsoever in the contractual process The contract, as juristic act, is at first a concrete

fact: the fact of the declaration. The objectivism of Islamic law [in the Safi‘i and Hanafi tradition] is pushed to its extreme limits’ (Chehata, 1968b, p. 89; quoted in Vogel, 2006, p. 32) (see here, section 3.5.2).

• Mdlikis and Hanbalis: subjectivism

While the Safi‘is and the Hanafis share an objective approach inclined to exter­nal declarations, the Hanbalis and, to a certain degree, the Malikis are led by a subjective perspective, as they both claim the need to interpret and apply contracts according to the intents of the parties.

The Hanbalis, moving from the internal morality of legal acts (somehow giving primacy to the ‘man to God’ over the ‘man to man’ relation within the realm of mu‘dmaldt), make the inner intention override external declara­tions. Ibn Qayyim al-Jawziyya (d. 751/1350), a follower of Ibn Taymiyya (d. 728/1328), distinguishes three hypotheses:

1. inner will and declared will are concordant. No difficulty arises;

2. the invalid intention of the party is masked by the validity of the external words, but it is impossible to prove the real will, even though this may be presumed; in this case, the agent will be responsible towards God, but the declaration will produce its legal effects;

3. there is a divergence, and it is possible to determine the inner intention of the declarant; if this purpose is condemned by the Sarl‘ah, then the contract will be invalid, despite the apparent regularity of the declarations (Linant de Bellefonds, 1958a, p. 512).

The Hanbali concern for the moral dimension of the ‘aqd leads them to con­sider legally accountable those contracting parties who are aware of the illicit intentions of the other party, an element which, by contrast, is deemed irrel­evant by the Safi‘is and the Hanafis if not made explicit in the contract. Thus, with regard to the unlawful purpose, the Hanbali Ibn Qudama (d. 620/1223) states: ‘if the unlawful motive is proven, it invalidates the sale, which is also void if the seller knows the (illicit) intention of the buyer, either from the words of the buyer or by presumption’ (Al Mughm, quoted by Linant de Bellefonds, 1958a, p. 517; my translation). He refers to the teachings of the master, Ibn Hanbal, in the following terms.

Ahmad [b. Hanbal] brought attention to this matter in a number of cases. In relation to the butcher and baker he said: if they know that what they sell serves the buyer to invite others to drink intoxicants, then they should not sell. Similarly, the maker of glasses should not sell them to one whom he knows is drinking intoxicants with them. He also forbade the selling of silk to men [desiring to wear it]. All these sales are null and void (bdtil).

(Al Mughnt, quoted in Arabi, 1997, p. 219)

Ibn Qudama also elaborates on the doctrine of his master with reference to the sale of grape juice to a person whose intention is to make wine.

The sale of grape juice to someone whom the vendor is aware is making wine from it is null and void (bdtil)...; if one were to object by saying that the formal conditions of the sale are properly met, we would reply: yes, but there is something which prevents it from taking effect. The sale is prohibited and nullified if the vendor knows the intention of the buyer (idhd ‘alima al-bd'i‘ qasd al-mushtan) to make wine, whether from the buyer’s declaration of from the specific signs indicating this.

(ibidem, p. 219)

As far as the Malikis are concerned, David Santillana, in his Istituzioni di Diritto Musulmano Malichita, based on the Muhtasar by Khalil Ishaq (d. 767/1365) and the Muwatta’ by Malik Ibn Anas (d. 179/795), argues that, among the essential elements (arkdn) of the contract, the niyya ‘qualifies the act and it determines its nature; the external act... is only the body, whose intention or will, the internal element, is the soul’ (Santillana, 1938, p. 22; my translation). Saleh reaches the same conclusion, commenting on the studies of Linant de Bellefonds of 1958 and 1965:

[de Bellefonds] was puzzled by Maliki teachings on intention and its effects on the validity of the contracts. In an article dated 1958 the author reached the conclusion that Maliki jurists - but even more so the Hanafi ones - have a real repugnance towards rendering a legal act dependent upon such an uncertain element as the motive which inspired the contracting parties. The same author treated that very subject in a book published subsequently in 1965. Then a totally different conclu­sion was drawn, namely, that the Maliki school takes into consideration the remote reasons which made the vendor decide to sell, and, more generally, that the Maliki school takes into account, in numerous spe­cific cases, the subjective motive which was in the mind of the obligor at the time the obligation came into existence. As a result the author acknowledged that inducing motive has an undeniable influence on the validity and interpretation of contracts or undertakings which give rise to obligations. The later position conveys a more faithful appraisal of the Maliki doctrine.

(Saleh, 1992b, pp. 123-124)

To summarise the divergent positions of the Sunni schools by considering the example of the sale of grape juice to the person who is going to produce wine (illicit motive), the Hanbalis declare it invalid; the Safi‘is and the Hanafis classify it as valid, with no hesitation; in the Maliki school, some divergences arise on the case, but the position in favour of the invalidity seems to prevail. The Maliki al-Hattab (d. 954/1547) states: ‘The sale of grapes to someone who makes wine from it, and the sale of silk clothing to one who wears it, are not permissible’ (Mawdhib al-Jalil Sarh Sidi Khalil, quoted in Arabi, 1997, p. 220). On usurious transactions, the famous Maliki jurist and philosopher Ibn Rusd (d. 595/1198) informs us that Malik Ibn Anas invalidated contracts which are formally admissible due to usurious pretexts (dhardi rabawiya). However, in contrast to Malik, ‘al-Shaf‘i does not consider suspicious transac­tions, taking into account for the validity and invalidity of sales only what the parties stipulate and state with their tongues and the appearance of their acts’ (Ibn Rusd, Biddyat al-Mujtahid wa Nihdyat al-Muqtasid, quoted in Arabi, 1997, p. 220, note 56; my italics).

The concept of khiydr (or ikhtiydr), which we mentioned in the previous section with regard to the Hanafis, is well recognized in the Maliki treatises as well, where it conveys the outcome of a free decision among different options (Santillana, 1938, p. 39). Here, the centrality of the niyya is shown in the requirement of a free and conscious intention, in order to enter the contract; in case of duress, for instance, the act exists in its arkdn but cannot produce any effect, since ‘he who is under duress does not follow his own intention, but that of the person responsible for the duress;... the declaration is merely apparent’ (ibidem, p. 41): ‘he who is under duress does not have the niyya to do what he is obliged to do; rather, he has the intention of doing the contrary’ (ibidem, p. 47; see section 3.4.4 in this chapter).

The different positions of the four Sunni schools on the psychological formation of the contract can be summarised following Arabi and through Diagram 2.

Safi'is Hanafis Malikis Han balis

------------------------------------------------------------------------------------------------------------------------------- ►

OBJECTIVISM SUBJECTIVISM

DECLARATION > INTERNAL WILL DECLARATION < INTERNAL WILL

Diagram 2 Objectivism and subjectivism in the Sunni schools

(author’s elaboration)

[T]he Hanafis and the Shafi‘is tend to ignore the ultimate aim of the contracting individual if that aim is neither stated in the terms of the contract nor evident from the circumstances surrounding the transac­tion; by contrast, the Malikis and the Hanbalis go beyond the apparent expressions of intent, addressing the real motive underlying the transac­tion even if the latter are not mentioned in the contract.

(Arabi, 1997, p. 210)

Significantly, the preferences of the schools for an objective or subjective approach mirrors their positions with regard to contractual freedom and the validity of attached clauses (Diagram 1, section 3.4.2), where the doctrinal divergences between the Hanafis and the Safi‘is, on the one hand, and the Malikis and the Hanbali, on the other, are coherently maintained.

Furthermore, the relevance of the psychological formation of the contract in its different components (niyya, qasd, khiydr, and ridd) also matches with the positions of the schools on legal artifices (hiyal; sing. hila), whose validity depends mainly on the objectivity of interpretation, despite the illegal purpose that they seek to achieve; as Schacht explained, they can be seen as the ‘use of legal means [external declarations] for extra-legal ends [illicit purposes].... The ‘legal devices’ enabled persons who would otherwise, under the pressure of circumstances, have had to act against the provisions of the sacred Law, to arrive at the desired result while actually conforming to the letter of law’ (1964, pp. 78-79). As hiyal is a core subject matter to understand the inter­play between contractual theory(-ies) and commercial practice(-s) in Islamic medieval trade, their study is postponed to Chapter 4 (section 4.2.3).

3.4.4. The vices of consent(duress, ikrah; fraud, tadlis; mistake, ghalat), misrepresentation, and the doctrine of al-khiyarat

The psychological formation of the contract in Islamic law can find further evaluation through the survey of the vitiating factors of the consent. On this matter, it is interesting to note that, among the three defects that Western legal scholarship traditionally recognises (duress, fraud,¹⁷ and mistake; in French law, violence, dol, and erreur), only duress (al-ikràh; al-jabr) is consid­ered, whereas Muslim fiqh ‘has never contemplated fraud [tadlis, taghrir] and mistake [ghalat] within a strictly subjective perspective; [rather surprisingly] it does not consider them, in short, as vices of consent’ (Linant de Bellefonds, 1965, p. 169; my translation). As far as the concept of misrepresentation¹⁸ in English contract law is concerned, the term does not find direct correspond­ence in Muslim fiqh, where the function of protection of the innocent party from deceit and fraud is mainly covered, as we will see later, by the doctrine of al-khiyàràt.

I would like to focus preliminarily on duress (ikràh) as a vitiating factor of the free manifestation of the will. Once again, the Sunni schools diverge in their assessment of the validity of the contract vitiated by duress (for a com­parative perspective of English and Islamic law, see Al-Fadl, 1991; for a general overview and reference to modern legislation, Rayner, 1991, pp. 245-253). According to the majority of the Hanafi jurists, the contract, though existent, is corrupted, defective (fàsid), and consequently, voidable, as sound consent (ridà) is a prerequisite for the validity of the ‘aqd. By contrast, the Malikis con­sider the act affected by duress valid (sahih) but non-binding (ghayr ldzim). More precisely, the Hanafis distinguish between constraining ( mulji) and non­constraining (ghayr mulji) duress in relation to the role of free choice (khiyàr).

The first type (compelling duress) nullifies consent [ridà] and vitiates free choice [khiyàr]. The second type (non-compelling duress) nullifies consent [ridà] but does not vitiate free choice [khiyàr].... Hanafi jurists argued that consent, as in being content or pleased with one’s decisions, is often lacking even without duress or with minimal duress... any amount of duress is liable to negate consent. But only serious or compel­ling duress will also spoil choice.

(Al-Fadl, 1991, pp. 127-128)

With regard to the Safi‘is and the Hanbalis, they classify the contract affected by duress as inexistent (bàtil) - i.e. void (Linant de Bellefonds, 1965, p. 170; Al-Fadl, 1991, pp. 140-141), since it affects the validity of the taràdi (agree­ment). But their arguments on the point are markedly dissimilar. For the Hanbalis, the fundamental problem lies in the lack of a sound niyya (subjectiv­ism); due to the vitiated niyya, the taràdi is vitiated as well, the contract lacks its rukn, and it is therefore inexistent. For the Safi’is, instead, duress negates the existence of the agreement as an external fact which must be valid in its material occurrence, with marginal consideration, as previously remarked, of the niyya (objectivism) (see section 3.5.2 in this chapter).

Moving now to the other two vitiating factors of the consent, unlike duress, ‘[m]istake [ghalat] is given the least consideration among the impediments to consent [reporting al-Sanhuri’s position]... [t]he principles of Ghalat are certainly not to be found in any systematically theoretical exegesis among the Shari‘a authorities’ (Rayner, 1991, pp. 175-176). Regarding fraud, ‘tadlis is itself generally considered not to have been of purely Islamic origins... taghrir and tadlis do not constitute regular “impediments” or “vices du con- sentement” (ibidem, pp. 204-205). The great Egyptian jurist Al-Sanhuri con­firms how, in contrast to the Western legal tradition,

Islamic jurisprudence recognizes all three kinds of defects, but in an inverse order. Most prominent of all is its treatment of duress (ikrdh), which is accorded a separate and explicit analysis. Fraud (tadlis) comes in the second place, after duress... as a source of defective transactions in its own right, and some schools identify it by this very term. On the other hand, error (ghalat) is the least prominent of contract defects in Islamic law, as it is the most subjective type of defect.

(Al-Sanhuri, Masddir, quoted in Arabi, 1995, p. 156)

This inverse order can raise two questions for the Western lawyer visiting the city of the ‘aqd. 1) First, how are duress, fraud, and mistake thought of in Muslim fiqh? Are they conceived as subjective defects of the contract or defects affecting the tarddi as ‘speech act,’ ‘occurrence of word’ (qawl)? 2) Second, if tadlis and ghalat are given limited attention in classical treatises, does this imply that Muslim jurisprudence thinks of the matter of the sound manifesta­tion of personal consent (ridd) differently from Western legal tradition?

1) As far as the first question is concerned, Arabi notes that, in Muslim jurisprudence,

a defect in the contract is considered as enjoying greater legal signifi­cance the more objectively it is induced.... By this criterion, error is the most subjective of the three categories, since, being a subjectively fostered illusion, it does not arise from any direct external cause. Fraud, which is charged with more legal effect than error, though dependent on a subjective blindness of sorts, is none the less critically linked to an external source of deception. The most objective type of legally defec­tive contract is that obtaining under duress, where the threats of death, bodily harm, or imprisonment render the contract null and void (bdtil) (Arabi, 1995, p. 156).

As we will shortly see, within this objective approach, fraud, and mistake/error (as well as the notion of misrepresentation) seem to be substituted by the doc­trine of the ‘option’ (khiydr; pl. khiydrdt) to enter the contract in the doctrinal elaboration of Muslim scholars.

2) The term khiydr indicates, for the Hanafis, ‘the fact of tending towards an object and wanting it’ (Ibn-‘Abidin) and it is distinguished from consent, ridd (defined by Al-Taftazani as ‘the result of the ikhtiydr’). All the schools attribute relevance to the topic of al-khiydrdt in relation to the enforce­ability of the contract, to guarantee the sound approval of the transaction.

In the attempt to explain why error and fraud do not receive particular atten­tion by the fuqahd', Linant de Bellefonds notes that the issue of the invalidity of the contract due to tadlis andghalat is not thought of by Muslim scholars as a vice of the ridd:, with this aim, on the contrary, it is replaced by the theory of al-khiydrdt, aimed at assuring the valid ‘choice’ of the contracting parties, so to protect them from any prejudice that may derive from unsound engage­ments (1965, pp. 213-215). Linant de Bellefonds specifies that any valid act (fulfilling all its arkdn and the surut determined at Law),

does not definitively bind the actor(s) if it comprises an option (khiydr)... for the contracting parties to cancel the act unilaterally. The word khiydr implies a choice... the beneficiary has the choice between two alter­natives: to ratify the act, which becomes definitively binding, ldzim, or rescind it, and the act will be deemed never to have existed.

(Linant de Bellefonds, 1965, p. 309; my translation)

Options are either conventional or legal; the former are added by the parties as terms of the contract (khiydr as-sart - ‘stipulated’ or ‘conditional’ option, option of condition - and the khiydr at-ta‘yin - option of ‘designation,’ faculty of choosing among several objects); the latter are automatically recognized by Law, independently from their insertion in the agreement (ibidem, p. 309; see also Rayner, 1991, p. 306; for instance, guarantee against defects, ‘option for defect,’ khiydr al-‘ayb). Following Linant de Bellefonds, one can argue that legal options replace both the category of mistake/error (khiydr al-ghalat, which is absorbed within the topic of the stipulated option, khiydr as-sart: see specifically on this point, Linant de Bellefonds, 1965, pp. 383-385) and fraud (khiydr al-tadlis), thus fulfilling the function of protecting the contract­ing parties from unsound agreements. The doctrine of al-khiydrdt certainly shows strong similarities with that of misrepresentation in English contact law, since they both have the function of providing protection against any decep­tion in the formation of the agreement. With this same aim, other examples are the faculty to control the matter that is not present at the majlis (‘option of inspection,’ khiydr al-ru'ya) and the khiydr al-wasf (the choice due to the absence of a desired quality in the object).

The khiydr as-sart is an important element to understand the nature of the ‘aqd. Its validity is recognised by all the schools on the basis of the hadith: ‘ “The Prophet said to Habban al-Ansari, who was complaining of being cheated in his transactions: When you buy or sell, at the moment of sale make a declaration to the effect ‘that there shall be no cheating (Ld khildiba) and I reserve for myself the Option for three days”’ (quoted by Rayner, 1991, p. 309; see also Linant de Bellefonds, 1965, p. 312). The ‘option life’ (waqt al-khiydr) of three days is strictly imposed by Hanafis¹⁹ and Safi‘is, while the Hanbalis admit any term, provided that the parties express clearly in the con­tract the duration; the Malikis make the validity of the option dependent on the needs of the parties and the nature of the contract (Linant de Bellefonds, 1965, pp. 316-317). With the khiydr as-sart ‘either one or both parties to a contract may insert a condition... giving them an option... to either cancel or ratify the sale’ (Rayner, 1991, p. 309). It must be noted that the effective­ness of the contract is subordinated solely on the choice of the beneficiary of the khiydr as-sart to ratify the exchange. This leads to two corollaries. First, the khiydr as-sart cannot be said equivalent to an invalidity due to mistake, as an initial error is not a requirement for its exercise. Second, the fuqahd' do not allow making the contract dependent on some future uncertain events through the insertion of a khiydr as-sart, since this would correspond to gha- rar (see later, section 3.5.4), with the consequent invalidity of the act (Linant de Bellefonds, 1965, p. 313); consequently, the khiydr as-sart does not cor­respond to a condition precedent of common law. Comparing the analysis of the khiydr as-sart in the Asl by the Hanafi al-Saybani (d. 189/804) with that in the Mudawwanah al-Kubrd by the Maliki Sahnun (d. 240/855), D’Emilia remarks how for both the classical fuqahd' the contract is not binding (ldzim) for the option holder until his unilateral consent (ridd) to the exchange is given; during the option life (waqtal-khiydr), the beneficiary of the option can examine the property (so that the option holder can decide carefully about the exchange, avoiding any mistake); the consent must be external, as mere inter­nal consent (ridd'bi'l-qalbi) is void (bdtil) (D’Emilia, 1957, pp. 634-635).

In accordance with D’Emilia, Bellefonds gives a twofold interpretation of the khiydr as-sart, both as a remedy against wrongful engagements and as a means to enjoying a period of reflection before concluding the contract (this explains why the option is called, especially by the Malikis, sart at-tarawwd, ‘condition of reflection’) (1965, p. 313).

On this point, another interpretation can be advanced. Although the khiydr as-sart can certainly be used by the beneficiary as a means of self-protection, in order to evaluate carefully the utility of the ‘aqd (and consequently avoid any error), it also gives the holder the power to cancel or ratify his approval of the contract, without the need to justify his decision in reference to defects or hidden elements unknown at the moment of the consent. Hence, depending solely upon the will of the holder, the khiydr as-sart appears to be a whimsical condition. Considering this, a) what is the effect of the khiydr as-sart on the enforceability of the ‘aqd?; and b) what is the chronological position of the khiydr as-sart in the formation of the agreement (taradi)?

a) With regard to the first point, in the Hanafi doctrine the contract affected by an option of stipulation is valid but subject to ratification (the final rational/voluntary acceptance of the act by the beneficiary); thus, the fuqahd' describe it as not-yet-binding (ghayr ldzim) or suspended (mawquf). More precisely, the binding effects of the two sides of the ‘aqd are regarded separately. The only effect (hukm) which is suspended is that of the contractor who has reserved for himself the option. The other party, on the contrary, is already bound from the time of the conclusion of the contract. Hence, the contract is mawquf, on the one side; lazim, on the other side (Linant de Bellefonds, 1965, p. 322; Rayner, 1991, p. 317). The dual nature of the optional contract, non-binding for one party and binding for the other, is testament to the perpetuation in Islamic law of a unilateral construction which is common in the laws of antiquity (although soon abandoned in favour of a bilateral construction). This point is under­lined by Schacht in relation to the etymology of jab (offer): ‘jab, making something wajib, means etymologically not “to offer” but “to make defi­nite, binding, due”, and this reflects a different, unilateral construction of the contract’ (1964, p. 22); it is also remarked by Zysow (‘jab... seems to reflect a stage of law in which sales were affected by unilateral convey­ances:’ 1985-86, p. 75).

b) What is the exact temporal collocation of the faculty of choice? The khiyarat cover a spectrum of time which is located between the formation of mutual consent, taradi, and the definitive effectiveness of the contract, which is suspended until the final ratification of the ‘aqd: ‘there is therefore life between the formation of the contract and its consensual or forced end. This life corresponds to particular rights for the parties which operate in Islamic law of options such as “time out” on the contract, a time for reassessment’ (Mallat, 2007, p. 279). This is a clear peculiarity of Islamic contract law in comparison with Western law.

In Western systems the contract itself is sacrosanct because all the neces­sary investigations and calculations are made, or are deemed to have been made, prior to the conclusion. In the Islamic system the procedure is vir­tually reversed. The first essential is to get the contract off the ground, to create the legal tie or ‘aqd, by mutual agreement. Then follows the time for reflection to ascertain whether or not the proper expectations of the parties are to be realised, and if they are not, to exercise the option to break the tie or rescind the contract. At this stage the Islamic ‘aqd is, comparatively, little more than a declaration of intent. Only when the wide-ranging and elaborate system of options is exhausted does the contractual commitment become fully imperative and legally binding (Coulson, 1984, pp. 73-74).

On the quality of al-khiyarat as a means for later reassessment (hence covering aspects that in Western legal systems relate more to the idea of fraud, mistake/ error, or misrepresentation), two final points can be advanced. First, what Safi‘is and Hanbalis indicate in their treatises as ‘option of the contractual session’ (khiyar al-majlis: i.e. the faculty for the parties to revoke the offer or acceptance just given during the contractual negotiations, majlis; see next section) does not specifically entail a faculty of choice. In fact, since a valid contract doesn’t exist until the parties have left the meeting (Linant de Bellefonds, 1965, p. 310, note 4), the distribution of contractual rights (huquq al-‘aqd) is not yet defini­tive, so there is no need for a choice to ratify or annul it. Second, the faculty of reassessment that fiqh provides can in general be interpreted (as previously

suggested) as a means of safeguarding against any defects of the exchanged properties, as proven by the so-called khiydr al-‘ayb (option for defect):

under Islamic commercial law, the seller in a sale and purchase agree­ment is under an obligation to allow the buyer to inspect or examine the fitness of the goods to be sold not only before the conclusion of the agreement but also after. If there is any defect in the goods, regardless of whether this defect is discovered before or after the conclusion of the agreement, Islam then grants the option (khiyar) to the buyer either to continue with the agreement or to rescind.

(Billah, 1998, pp. 278-279)

3.5.