based on the saying of the Prophet (peace and blessings of Allah be upon him): "And one-third is much" (28). It is also said: one-sixth, and it is said: what people customarily do not overlook in terms of deception; because that which the Sharia does not specify (29), one refers back to custom concerning it.

Section: If the sale occurs on an unspecified item (30), such as a qafiz (31) from a heap (32), or a ratl of oil from a jar, then the requirement according to al-Khiraqi is that if they part ways without rescinding, neither of them has the right to return it, except due to a defect or an option; because the sale here becomes binding upon parting, whether they have taken possession or not. The Qadi said: The sale is not binding until possession is taken, like items measured by volume or weight. This is an explicit statement that it is not binding before possession is taken. He mentioned in another place: whoever buys two qafiz from two heaps, and one of them is destroyed before possession, the contract is void regarding the destroyed part, but not the remainder, according to a single narration, and the seller has no option. This indicates that it is binding upon the seller before possession, for if it were permitted (non-binding), he would have an option, whether one of them was destroyed or not. The reasoning for it being permitted is that it is a sold item over which he does not have ownership or authority to dispose, so the sale is permitted, just as it is before parting, and because if it were destroyed, it would be at the risk of the seller. The reasoning for the first view is the statement of the Prophet (peace and blessings of Allah be upon him): "If they part after they have traded, and neither of them has abandoned the sale, then the sale has become binding" (33). What we mentioned for the other opinion is refuted by the sale of that which has been previously seen, the sale of described items, and salam contracts, for those are binding with what we have mentioned, and likewise the rest of the sold items according to one of the two narrations.

703 - Issue: He said: (And the option [khiyar] is permitted for more than three [days]).

He means three nights with their days. He only mentioned the nights because, in dating, the feminine form is dominant; Allah the Almighty said: {And We made an appointment with Moses for thirty nights and perfected them by ten; so the term of his Lord was completed as forty nights} (1). And He said: {they shall wait for four months and ten [days]} (2). And in the hadith of Habban (3): "And you have the option for three" (4). It is permitted to stipulate the option for any known period they agree upon, whether its duration is short or long, and this is the view of Abu Yusuf, Muhammad, and Ibn al-Mundhir. This was also narrated from al-Hasan ibn Salih, al-Anbari, Ibn Abi Layla, Ishaq, and Abu Thawr. Malik permitted it for more than three days commensurate with the need, such as a village that cannot be reached in less than four days, because the option is for his need, so it is estimated accordingly. Abu Hanifa and al-Shafi'i said: It is not permitted for more than three; based on what was narrated from Umar, may Allah be pleased with him,