Cancelling a transaction
The right to cancel a transaction is called Khiyar. The seller and the
buyer can cancel a transaction in the following eleven case:
I. If the parties to the transaction have not
parted from each other. This is called Khiyar ul Majlis.
II. If the buyer or the seller has been
cheated in a sale transaction, or in any other sort of deal, either of the
parties has been deceived, they have a right to call off the deal. This is
called Khiyar of Ghabn.
III. If while entering into a transaction, it
is agreed that up to a stipulated time, one or both the parties will be
entitled to cancel the transaction. This is called Khiyaush Shart.
IV. If one of the parties presents his
commodity as better than it actually is, and thereby attracts the buyer,
or makes him more enthusiastic about it. This is called Khiyar Tadlis.
V. If one of the parties to the transaction
stipulates that the other would perform a certain job, and that condition
is not fulfilled. Or if it is stipulated that the commodity will be of
particular quality, and the commodity supplied may be lacking in that
quality. In these cases, the party, which laid the condition can cancel
the transaction. This is called Khiyar Takhallufish Shart.
VI. If the commodity supplied or its
consideration is defective. This is called Khiyarul ‘aib.
VII. If it transpires that a quality of the
commodity under transaction is the property of a third person. In that
case, if the owner of that part is not willing to sell it, the buyer can
cancel the transaction, or can claim back from the seller the replacement
of that part. Also if it transpires that a part of consideration (what is
taken instead of sold commodity) belongs to a third party and the owner is
not willing to do such a transaction, then the seller can cancel the
transaction or take back the consideration of that part from buyer (this
is called Khiyar Tabaooz Safat).
VIII. If the owner describes certain
qualities of his commodity, which the buyer has not seen, and then the
buyer realizes that the commodity is not as it was described, the buyer
can rescind the deal. Also, if buyer describes certain qualities for the
consideration and later it is clear that they are not as described, the
seller can cancel the transaction. Also, if the transaction takes place
because of previous seeing of commodities, and after wards it transpires
that commodity or its consideration were not as seen before, in the first
case, buyer and in the second case, seller may cancel the transaction
(this is called Khiyar Royat). Similarly, if the buyer may have seen the
commodity sometimes back, and purchases it thinking that the qualities it
had then will be still existing, and if he finds that those qualities have
disappeared, he has a right to cancel the deal.
IX. If the buyer does not pay for the
commodity he has bought for three days, and the seller has not yet handed
over to him the commodity, the seller can cancel the transaction. But this
is in the circumstance when the seller had agreed to allow him time for
deferred payment, without fixing the period. And if the seller had not at
all agreed on deferred payment, he can cancel the transaction at once,
without any deal. And if he had allowed him more than three days’
credit, then the seller cannot rescind the deal before the termination of
three days. If the commodity is perishable, like fruits, which would
perish or decay if left for one day, and the buyer without any prior
condition, does not pay till nightfall, the seller can cancel the
transaction. (This id called Khiyarul Ta’khir.)
X. A person, who buys an animal, can cancel
the transaction within three days. (This is called Khiyarul Haywan).
XI. If the seller is unable to deliver possession of the thing sold by him, like, if the horse sold by him runs away and disappears, he can cancel the transaction. (This is called Khiyarut Ta’azzurit Taslim). The relevant rules are explained later.
2228. If a buyer does not know the price of the commodity, or was unconcerned about it at the time of purchase, and buys the thing for higher than usual price, he can cancel the transaction if the difference of price is substantial, and if the difference is established at the time of abrogation. Similarly, if the seller does not know the price of the commodity, or was headless about it at the time of selling, and sells the thing at a cheaper price, he can cancel the deal if the difference is substantial and if other conditions mentioned above obtain.
2229. In a transaction of “Conditional sale”, for example, a commodity worth 1000 Tomans is sold for 200, and it is agreed that if the seller returns the money within a stipulated period, he can cancel the transaction, the transaction is in order, provided that the buyer and the seller had genuine intention of purchase and sale.
2230. In a transaction of “Conditional sale”, if the seller is sure that even if he did not return the money within the stipulated time, the buyer will return the property to him, the transaction is in order. However, if he does not return the money within the stipulated time, he is not entitled to demand the return of the property from the buyer. And if the buyer dies, he cannot demand the return of the property from his heirs.
2231. If a person mixes inferior tea with superior tea, and sells it as a superior tea, the buyer can cancel the transaction, if he comes to know that.
2232. If a buyer finds out that the thing purchased by him is defective, like, if he purchases an animal and finds that it is blind of an eye, and this defect existed before the transaction was made, but he was not aware of it, he can cancel the transaction and the difference between the value of the sound property and the defective property should be assessed, and the buyer should get refund in that proportion of the amount paid by him to the seller. For example, he has purchased something for 4 T. and finds out that it is defective. Now the price of the thing in perfect, faultless state is 8 T. and that of deficient is 6 T. the difference between these two prices will be assessed at 25%. The buyer will be paid 25% of what he actually paid, and that will be one Toman.
2233. If a seller comes to know that what he received in exchange for his property is defective, and that defect was present in it before the transaction, but he was not aware of it, he can cancel the transaction, and can return it to its owner. And if he cannot return, he can obtain the difference between the faultless and the defective thing, according to the above-mentioned rule.
2234. If a defect takes place in the property after concluding the transaction, but before delivering it, the buyer can cancel the transaction. Similarly, if some defect is found in what is taken in exchange for the property, after concluding the transaction but before delivering it, the seller can cancel the transaction. But if both sides wish to settle by taking the difference between the prices, it is permissible.
2235. If one comes to know the defect in commodity after transaction, and does not cancel it right away, as an obligatory precaution he may not do it later. Unless he is unaware of this issue and he cancels the transaction right after knowing that, but a little while for thinking has no harm.
2236. If a person comes to know the defect in a commodity after purchasing it, he can cancel the transaction even if the seller is not present.
2237. In the following four cases the buyer cannot cancel the
transaction because of defect in the property purchased by him, nor can he
claim the difference between the prices:
I. If at the time of purchasing the property,
he is aware of the defect in it.
II. If he does not object to the defect in
III. If at the time of concluding the contract, he says: “Even if the property has a defect will neither return it nor claim the difference between the prices”
IV. If at the time of concluding the contract, the seller says: “I sell this property with whatever defect it may have”. But, if he specifies a defect and says: “I am selling this property with this defect”. and it transpires later that it has some other defect as well, which he did not mention, the buyer can return the property due to that defect, he can take the difference between the prices.
2238. In three cases if buyer comes to know that there is some
defect in the commodity, he may not cancel the transaction but he may
claim the difference between prices of defective and undefective ones:
First, if he changed the commodity in a way
that people say it has not remained in previous position. For example, he
has made suit out of cloth or grimed wheat.
Second, only the right of cancellation is
Third, after delivery, some other defect is known. But if a defective animal is bought and before 3 days the buyer finds some other defect he can cancel the transaction, even if he may have taken delivery of the concerned animal. Also if the buyer has the right to cancel the transaction in a fixed period and during the same period some other defect appears, he may cancel it even after delivery.
2239. If a person owns some property which he himself has not seen, but another person has described its particular to him, and he mentions the same particulars to the buyer and sells the property to him. Later on, he learns after selling that the property was better than what he knew about it, he can cancel the transaction.