The Role of Possession in Conditional Sale, with a Critical View on Article 460 of the Civil Code

The extinguishment of options (Khiyār) through possession is generally accepted. However, the role of possession in the extinguishment of the option condition (Khiyār al-shart) differs from other options, because the option condition varies according to its types-namely, the option condition outside the framework of conditional sale and the option condition within the framework of conditional sale. This distinction is reflected not only in the jurists’ discourse but also in Articles 450, 451, and 460 of the Civil Code. The focus of this article is on one type of option condition, namely conditional sale, with a critical comparison to Article 460 of the Civil Code. The main question of the article is: What is the role of possession in a precarious contract during conditional sale, when critically examined in light of Article 460 of the Civil Code? Using a descriptive-analytical method, this study concludes that, according to some jurists -whose reasoning is also supported by evidence- possession by the buyer of the principal item (Muthamman) and by the seller of the price (Thaman) or, in other words, possession of the transferred subject by both parties in conditional sale, does not extinguish the option. From the perspective of the Civil Code, firstly Article 460 incompletely addresses the rules related to conditional sale, since this article explicitly addresses possession only with respect to the buyer’s possession of the sold item (Mabīʿ). Secondly, contrary to the jurisprudential view that possession does not absolutely extinguish the option condition, this article considers possession that leads to transfer of ownership or similar effects as extinguishing the option and also is silent regarding possession by the seller of the transferred subject and does not provide a ruling. Therefore, by suggesting a modification and rewording the article in a different manner, we have resolved these deficiencies.