الانتقال القهري لخيارالشرط في الفقه الإسلامي و القانون الأفغاني

Abstract

The option of condition (Khiyar-e-Shart) is a contractual right that enables a contracting party or a designated third party to confirm or rescind a contract within a specified period. While its exercise during the holder’s lifetime is universally accepted, Islamic jurists differ on whether this right can be transferred involuntarily to heirs after the holder’s death. This study examines this issue by analyzing the perspectives of major Islamic legal schools alongside the provisions of the Afghan Civil Code. Using a descriptive-analytical, library-based approach, the research reviews classical jurisprudential texts and statutory law to determine how the option of condition is treated across legal contexts. The findings indicate that Shafi’i and Maliki jurists generally consider the option of condition to be inheritable, whereas Hanafi jurists and Hanbali jurists (with certain qualifications) regard it as a personal right tied to the contract, thus rejecting its involuntary transfer. Consistently, the Afghan Civil Code does not recognize inheritance of this contractual option. The discussion highlights that contemporary scholars largely favor the Hanafi and Hanbali positions, viewing the option of condition as a personal contractual attribute rather than an inheritable right. This interpretation carries important implications for the application of Islamic jurisprudence and Afghan legal practice, particularly regarding the rights and obligations of contracting parties and their heirs.