When does ownership transfer in a sale with an option (khiyar)?
Chapter on the Option of the Two Parties in Sale
Al-Mughni
Book of Sales
Primary text
Ownership transfers to the buyer immediately upon the contract execution (*nafs al-'aqd*) in a sale contingent upon an option, according to the apparent position of the Madhhab. This holds true whether the option belongs to both parties or only one party. The evidence for immediate transfer includes the Prophet's saying: 'Whoever sells a slave who possesses wealth, his wealth belongs to the seller, unless the buyer stipulates it' (Reported by Muslim), and his saying: 'Whoever sells date palms after they have been pollinated, their fruit belongs to the seller, unless the buyer stipulates it' (Agreed upon). These rulings establish that ownership transfers to the buyer based on his stipulation, which is generalizable to all sales. Furthermore, since the contract is valid, it transfers ownership immediately, just like a sale without an option. The very essence of the sale is the transfer of possession, indicated by the formula 'I have made you owner' (*malaktuka*), which necessitates the establishment of ownership like any other sale.
Supporting text
One view, attributed to Ahmad, Malik, and the second opinion of Al-Shafi'i, holds that ownership does not transfer until the option period expires. Abu Hanifa held a similar view if the option belonged to both parties or the seller; however, if the option belonged only to the buyer, ownership does not enter the buyer's possession because the sale involving an option is considered an incomplete contract, similar to a gift before receipt.