Feasibility of Obtaining “Shof’a” in Sales with Option and Their Conflict

Abstract

One of the controversial challenges among the jurists is the possibility of the right of “Shof’a” in sales with option. Many Imamiyah jurists have accepted it absolutely, but some accept it only where the customer has option. Sunni jurists have also considered the applicability of the right of Shof’a if the client has option, although some have made it dependent on the fate of the contract. Therefore, several views have been expressed on the conflict between the action and the right of Shof’a. According to Article 814 of the Civil Law, the right of Shof’a is accepted in sales containing option, while according to Articles 33 and 34 of the law of register, the right of Shof’a is not created in sales containing option. In this research, different viewpoints and opinions in Islamic jurisprudence and statute law have been presented and evaluated. With a descriptive-analytical method, it was found from jurisprudential and legal sources that the right of Shof’a is applicable in the sales with option; if the option is exercised before taking the Shof’a, this right is canceled, but taking the Shof’a before the option is applied depends on the determination of the fate of the option.

Keywords

• taking by virtue of shof’a
• sale with option
• owner of the shof’a
• common property
• sharer