Khiyar: the options, part 2

This second part of the chapter on the options in contracts (khiyar) deals with the option for hidden defects, the compensation known as arsh, the reference to merchants' custom and experts to qualify a defect, then the option of sight (ru'ya), and finally the option concerning overmilking for deception (tasriya). Each question is laid out school by school, namely the Hanafis, the Malikis, the Shafi'is and the Hanbalis, with the exact positions, the arguments, the hadiths and their takhrij (sources). The 23 sheets below are a faithful and enriched translation of the fiqh encyclopedia: they complete the chapter on sales.

The obligation to disclose a defect in the merchandise

The absolute contract, without condition, implies that the merchandise is free from defect; yet a defect is either something that arises later or something contrary to the outward appearance. At the time of conclusion, its absence is therefore presumed. As soon as it becomes known, part of what the contract implies is missing: the buyer is not bound to keep the goods against the price, and he is entitled to return them and recover the full price (al-Mughni 4/108-109). The scholars reasoned by analogy on the model of the option for the animal overmilked for deception (musarra): the common factor is not receiving sound merchandise, because the buyer spent the price so that a sound article would be delivered to him, and that was not delivered (Takmilat al-Majmu' of al-Subki 12/116-117).

Ibn Qudama (may Allah have mercy on him) said: the Prophet's (peace be upon him) establishing the option in the case of overmilking for deception is an indication of its establishment in the case of defect (al-Mughni 4/108). The option for defect is therefore established by the Law without any stipulated condition: the soundness of the merchandise is like a condition of the contract, and the seller may not sell defective merchandise without disclosing its defect.

Disclosing the defect in the merchandise: there is no disagreement among the scholars of the community: if the merchandise contains a defect, the seller must disclose it to the buyer, in accordance with the saying of the Prophet (peace be upon him).

"It is not permissible for a Muslim to sell to his brother a sale containing a defect without disclosing it to him."Authentic hadith, narrated by Ahmad (4/158), Ibn Majah (2246), al-Tabarani (17/317), al-Hakim (2/10) and al-Bayhaqi (5/320)

Abu Hurayra (may Allah be pleased with him) narrated that the Messenger of Allah (peace be upon him) passed by a heap of grain, plunged his hand into it, and his fingers encountered moisture.

He said: "What is this, O seller of grain?" The man replied: the rain has reached it, O Messenger of Allah. He said: "Why did you not place it on top of the grain, so that the people could see it? Whoever deceives is not one of mine."Narrated by Muslim (102)

Wa'ila ibn al-Asqa' (may Allah be pleased with him) said: I heard the Messenger of Allah (peace be upon him) say: "Whoever sells a defect without disclosing it remains under the wrath of Allah, and the angels keep cursing him."Very weak hadith, narrated by Ibn Majah (2247)

'Abd al-Majid ibn Wahb narrated that al-'Adda ibn Khalid ibn Hawdha said to him: shall I read you a letter that the Messenger of Allah (peace be upon him) wrote for me? He replied: yes. He then produced a letter reading as follows.

"This is what al-'Adda ibn Khalid ibn Hawdha bought from Muhammad, the Messenger of Allah: he bought from him a male or female slave, free of illness (da'), free of the habit of running away (gha'ila) and of bad character (khibtha), being the sale of a Muslim to a Muslim."Good (hasan) hadith, narrated by Ibn Majah (2251) and al-Daraqutni (3/77)

"Free of illness" designates the hidden defect of the merchandise that the buyer could not inspect; "free of running away" designates fleeing, theft and fornication; "free of bad character" designates what pertains to conduct. As for "running away", it also designates the seller's silence about what he knows to be blameworthy in the merchandise. His words "the sale of a Muslim" show that the absolute contract is fully valid, the mention being intended to define its cause and to confirm it.

The Prophet (peace be upon him) thus established that the mere silence of one of the contracting parties about what it knows, and without which the other would not have contracted, whether defects or other flaws, is a major sin. This silence has been forbidden and made liable to the wrath of Allah, even if the one who keeps silent has said nothing, described nothing and stipulated nothing. The outward appearance of the goods is health and sound condition: the other party builds its affair upon what it supposes of the outward appearance, which the seller has not described with his tongue; that is a form of uncertainty (gharar) against him and of deception toward him. To deceive by speech and description is a sin; to deceive by giving the appearance of one situation and then acting otherwise is greater still in uncertainty and deception. And if the one who speaks is a sinner, the one who keeps silent must be more so (al-Fatawa al-Kubra 3/236).

The seller must detail the defect or show it to the buyer; he may not remain vague, that is, sell a given kind in bulk without specifying the unit bearing uncertainty, for example the fact that it is defective, nor specify the exact seat of the defect (Hashiyat al-Sawi 6/453; Hashiyat al-'Adawi 2/152).

The obligation to disclose the defect is not limited to the seller: it extends to anyone who knows of the defect. Al-Subki said in Takmilat al-Majmu': "If someone other than the seller knows of the defect, he must disclose it to anyone who wants to buy it, according to the second hadith mentioned by the compiler and the saying of the Prophet (peace be upon him): 'Religion is sincere counsel'. The hadiths on this are many, authentic and explicit. Among those who stated it along with the author, may Allah have mercy on him, are Ibn Abi 'Asrun and al-Nawawi in additions to the Rawda; this is a matter that I do not think admits of any disagreement, given the obligation of sincere counsel."

Also covered by the compiler's words, among those who are not the seller: the seller by agency (wikala) or by guardianship (wilaya), as his words in the Tanbih show; the one who is not a seller; and anyone, having no connection with the two parties, who has seen the defect, even if he is a stranger, as in the story of Wa'ila ibn al-Asqa'. This stranger is in one of three situations.

• The first: he knows that the seller has informed the buyer of the defect. Disclosure is then not binding on him, the purpose having already been achieved by the seller's disclosure.
• The second: he knows, thinks or imagines that the seller did not inform him. Disclosure is then binding on him, by virtue of the generality of the hadith and the story of Wa'ila, who asked the buyer whether the seller had informed him; this shows that he was not certain of the absence of disclosure, for this falls under sincere counsel. This, however, only if the supposition is plausible: if he trusts the seller, given his religion, and considers it more likely that he did inform the buyer, that is the third situation.
• The third: it may be said that disclosure is not binding on him, given the seller's outward situation, and for fear of offending his heart, since he might imagine that he has been ill thought of; and it may be said that inquiry is required, as Wa'ila ibn al-Asqa' did, for the default is the absence of disclosure, and there is no objection to inquiry, given the generality of the hadith on the obligation to disclose.

All of this if the seller knows of the defect; if the stranger alone knows of it, he must disclose it to everyone. As for the timing of disclosure: for the seller, it is before the sale; if he sells without disclosing, he disobeys, as has been said. For the stranger, it is likewise before the sale when needed; if he is not present at the time of the sale, or if it is not possible for him, he must disclose after the sale, so that the return for defect takes place, as Wa'ila did; he may not delay this beyond the time when the buyer needs it. And Allah knows best (Takmilat al-Majmu' 12/117-118).

The ruling on a sale with concealment of the defect

If the seller sells merchandise containing a defect without disclosing it, the sale is valid, though sinful, according to the four imams and most people of knowledge. The validity of the sale despite the defect appears in what al-Bukhari narrates from Sufyan: 'Amr said: there was a man here named Nawwas, who had camels affected with mange. Ibn 'Omar (may Allah be pleased with him) went and bought those camels from a partner of Nawwas. The partner came and said: you sold those camels? From whom did you buy them? From an old man, such and such. Woe to you: that is, by Allah, Ibn 'Omar. The latter came and said: my partner sold you camels with mange without informing you. He answered: release them. When he was about to drive them away, he said: leave them: we are content with the judgment of the Messenger of Allah (peace be upon him): there is no contagion (Bukhari 2099; see al-Mughni 4/108, al-Muhadhdhab 1/284, Takmilat al-Majmu' of al-Subki 12/118).

When the buyer discovers a defect that reduces the price, the seller knew of it, he took possession of the merchandise without knowing it, and no sign of consent to the defect appeared, he has the choice between two matters, by agreement of the jurists: first, to keep the defective goods at the full price, for he paid the price in order to receive sound merchandise and it was not delivered to him, so the recovery of the full price is established for him; second, to return the merchandise to the seller, for he did not consent to it, the absolute contract implying the quality of soundness, as has been said (see the next sheet).

Claiming the arsh when the merchandise turns out to be defective

Soundness was thus like an explicit condition of the contract: upon its lapse the buyer chooses, so as not to be harmed by remaining bound to what does not please him. Ibn Qattan (may Allah have mercy on him) said: whoever buys an animal, goods or an estate and finds a defect in the merchandise, if he wishes he returns it, and if he wishes he keeps it, whether the period was short or long, without dispute among the people of knowledge (al-Iqna' fi Masa'il al-Ijma' 4/1733, no. 3380). Ibn Qudama (may Allah have mercy on him) said: as soon as he learns after the sale of a defect he did not know of, he has the choice between keeping and rescinding, whether the seller knew of the defect and concealed it or did not know: we know of no disagreement on this, for the Prophet's (peace be upon him) establishing the option in the case of overmilking indicates its establishment for the defect, and because the absolute contract implies the soundness of the merchandise, the defect being either recent or contrary to the outward appearance: at the time of conclusion its absence is presumed, and as soon as it becomes known, part of what the contract implies is missing (al-Mughni 4/108-109; see al-Muhadhdhab 1/284).

The jurists have differed: if someone buys merchandise and finds it defective, may he keep it while claiming the arsh, or is the only course the return, or keeping without compensation? The Hanafis and the Shafi'is hold that his only choice is the return or keeping without arsh, except with the seller's consent, according to the Hanafis, against the relied-upon opinion among the Shafi'is. The Hanbalis hold that the buyer chooses between returning and recovering the price, or keeping and recovering the amount of the depreciation. The Malikis distinguish: a light defect without effect gives no right to anything, not even return; a defect that has an effect and a value gives right to its arsh; a gross defect makes the return obligatory, to the point that if he keeps the goods, he cannot claim the reduction.

Detail of each school. The Hanafis said: if he finds a defect, he takes the goods at the full price or returns them, for the absolute contract implies the quality of soundness; upon its lapse he chooses, so as not to suffer by remaining bound to what does not please him. He is not permitted to keep the goods and take the reduction, namely the arsh, without the seller's consent, for the descriptive qualities are not matched by any part of the price in the bare contract, and because the seller did not consent to part with his ownership for less than the named price, which would harm him; whereas the buyer's harm can be averted through the return, without harm.

This covers a defect existing at the time of the sale or occurring later in the seller's hands, gross or slight. The dower (mahr), the payment of khul' and the compensation of a settlement for intentional killing are returned only in case of gross defect, not a light one. The gross defect in the dower is the one that moves it from the good class to the middling, or from the middling to the poor; the light defect of the dower is returned only if the object is sold by measure or weight; if it is, even the light defect is returned. Likewise, if the merchandise is a commodity sold by measure or weight, and a defect appears in a part: the buyer may not keep the sound part and return the defective part. The principle is that the buyer has no power to split the transaction to the seller's detriment before taking possession (qabd), as has been said, and he has it after; the option of condition and the option of sight, as long as possession has not taken place, prevent the completion of the transaction, which is consummated by possession, understood as possession of the whole: even if he takes possession and then finds a defect in one of the two things, he returns both or keeps both.

A commodity measured or weighed is like a single thing: he cannot return a part without the other, before or after possession, for sorting out the defective part increases the defect, as though it were a new defect; it has even been said that if the commodity is in two vessels, he may return the defective part of one after possession, since there is no harm. Likewise, if he buys a pair of sandals or two leaves of a door and finds a defect in one, before or after possession: he returns both or keeps both; and the same applies to anything whose separation causes harm. What separation does not harm, like two garments: if a defect appears in one before possession, he may not return one of them, for that would be splitting the transaction before its completion; if the defect appears after possession, it is permitted, for the separation causes no harm, the transaction having been consummated by possession. The granting of partial return follows this detail: what separation harms is a defect, and otherwise it is not (Sharh Fath al-Qadir 6/356; al-Ikhtiyar 2/22; al-Jawhara al-Nayyira 3/57-58; al-Lubab 1/371; al-Bahr al-Raiq 6/39; al-Hidaya 3/35; Mukhtasar al-Wiqaya 2/52; Tabyin al-Haqa'iq 4/31).

The Malikis said: whoever buys a thing and finds in it a defect capable of deception, which greatly reduces the price, has the choice between keeping the merchandise without receiving anything in compensation for the defect, or returning it and recovering his price; unless he expressly declares his consent, or remains silent without excuse: he then no longer has the choice. The buyer may not keep the goods while claiming the value of the defect, unless the defect disappears in his hands. If he wants to keep them against the arsh and the seller refuses to pay it, the seller's word prevails, for the buyer is entitled to no arsh as long as the return is possible; if the goods perish in his hands by one of the causes of loss, the return is no longer possible and he has only the arsh.

Ibn Juzayy al-Gharnati (may Allah have mercy on him) said: defects are of three types: a defect with no effect at all, a defect of value, and a defect entailing return. The defect with no effect is the light defect that does not reduce the price. The defect of value is the light defect that reduces the price: it is deducted from the buyer's price to the extent of the reduction caused by the defect, such as a tear in a garment or a crack in the wall of a house; it has been said that it entails the return of goods, contrary to the principles. The defect entailing return is the gross defect that reduces a share of the price: a loss of a tenth entails the return according to Ibn Rushd; some have said a third. Faced with such a defect, the buyer chooses between returning the goods to his seller or keeping them without arsh; he may not keep them while claiming the value of the defect, unless it disappears in his hands. This classification concerns what is not an animal; the animal, such as a slave, is returned for any loss of value, small or great: this is what al-Shafi'i and Abu Hanifa said for all sales (al-Qawanin al-Fiqhiyya 1/176; see al-Fawakih al-Dawani 2/81, al-Thamar al-Dani p. 502, Hashiyat al-'Adawi 2/152, As'hal al-Madarak 2/288, 293).

The Shafi'is said: the one entitled to return may not keep the merchandise while claiming the arsh, and the seller may not prevent him from returning against paying the arsh. If both agree to forgo the return in exchange for part of the price or other wealth: there are two views on the validity of such a settlement; the sounder is that it is prohibited, and the buyer must return what he took. Does his right of return lapse? Two views, and the sounder is that it does not, as long as he believed the settlement valid; if he knew of its invalidity, his right lapses definitively (Raudat al-Talibin 3/131; Asna al-Matalib 2/68).

The Hanbalis said: whoever buys defective goods without knowing of the defect at the time of the contract, then learns of it, has the choice, whether the seller knew of the defect and concealed it or did not know, or whether a defect occurred after the contract and before the return, in what is guaranteed by the seller, such as goods sold by volume, weight, number or harvested on the stalk. The buyer chooses between returning the goods at his own expense and recovering the full price, or keeping the goods with the arsh of the defect, whether the seller consents to pay the arsh or not, for the two parties agreed that every compensation answers to the thing compensated; and with the defect, a part of the goods was lost: he recovers its substitute, which is the arsh, that is, the fraction between the value of the goods when sound and its value when defective, out of the price.

The arsh becomes obligatory when the merchandise perishes in the buyer's hands, the return being impossible and no consent to defective goods being established. The same applies if the buyer's ownership ends by manumission, death, an endowment (waqf), or if the return becomes impossible before he learns of the defect, or if he sold the goods without knowing of its defect (al-Mughni 4/119-120; Kashshaf al-Qina' 3/253; Manar al-Sabil 2/31).

The reference to custom and experts to determine the criterion of the defect

The criterion of the defect is determined, for most jurists, by those versed in the craft. Al-Kasani (may Allah have mercy on him) said: the foundation in this chapter is the custom of the merchants: whatever reduces the price according to their usage is a defect that gives rise to the option, otherwise it is not (Badai' al-Sanai' 5/275). Ibn al-Humam (may Allah have mercy on him) said: the reference for qualifying something as a defect belongs first to the experts in that matter, namely the merchants, or the craftsmen if the merchandise is a manufactured work; the three imams said the same; whether the defect diminishes the thing itself, or its benefits, or even if it is merely a flaw of appearance, such as a black nail, sound and strong for work (Sharh Fath al-Qadir 6/357; al-Bahr al-Raiq 6/42).

Al-Shirazi (may Allah have mercy on him) said: the defect for which the merchandise is returned is what people count as a defect; if something of it is hidden, one refers to the experts of that kind (al-Muhadhdhab 1/286). Al-Mufiq (may Allah have mercy on him) said: the reference in that matter, namely the defect, is the usage of the merchants (al-Sharh al-Kabir 4/85; Kashshaf al-Qina' 3/250). There is no doubt that the mention of the merchants is not a restriction: the intent is the expert of each thing according to its nature.

The Hanafis require the unanimous agreement of the experts to qualify the thing as defective. Ibn Abidin transmitted from al-Khaniyya: if the merchants disagree, some saying it is a defect and others that it is not, the return does not take place, for it was not a defect evident to all (Hashiyat Ibn Abidin 5/5). In the Shafi'i school, this unanimity is not required: plurality is not required, as al-Subki transmitted from the authors of the Tahdhib and the Udda; a single opinion suffices. Al-Subki (may Allah have mercy on him) said: the author of the Tahdhib said: if a single expert declares that it is a defect, the return is established; such is also the implication of the words of the author of the Udda, and the author of the Tatimma accepted the testimony of two persons even if they differ over some attributes. If it is a defect and there is no one to turn to, the seller's word prevails, accompanied by his oath (Takmilat al-Majmu' 12/313).

The conditions for the establishment of the option for defect according to the four schools

Several conditions are required for the option for defect to be established in favor of the buyer after the discovery of the defect.

• The first: the appearance of a relevant defect before the contract, by agreement of the jurists. If a defect that normally removes the soundness of this type of merchandise is discovered after the purchase and possession, the buyer may return it, by agreement. Likewise, if a defect occurs after the sale but before taking possession and delivery, according to the majority, namely the Hanafis, the Shafi'is and the Hanbalis, for the merchandise is then within the seller's guarantee, its parts as well as its qualities. The Hanbalis, however, restricted this to what is guaranteed by the seller: if a defect occurs in the merchandise after the contract and before possession, in what is guaranteed by the seller, such as goods sold by volume, weight, number, harvests still on the stalk and the fruits of the tree, that is, a sale by description or on prior sight. If the defect is not old but occurs after delivery, the option is not established, by agreement, for its establishment stems from the loss of the quality of soundness stipulated in the contract, which proves that the merchandise arrived sound in the buyer's hands, the defect having occurred only after delivery (Badai' al-Sanai' 5/275; Sharh Fath al-Qadir 6/381; al-Fatawa al-Hindiyya 3/66; Raudat al-Talibin 3/119; Mughni al-Muhtaj 2/498; Kashshaf al-Qina' 3/253; al-Raud al-Murbi' 1/564).
• The second: that the buyer be unaware of the defect at the time of the contract and of possession. If he knows of it at either moment, he has no option, for he is deemed to have accepted it: engaging in the purchase while knowing of the defect indicates his consent. The same applies if he is unaware of the defect at the contract and learns of it before possession, for the completion of the transaction is attached to possession: knowledge at the time of possession equals knowledge at the time of the contract. This admits of no disagreement among the jurists. Al-Subki (may Allah have mercy on him) said: if he knows of the defect, there is no doubt that the option is not established for him, given his consent to the defect. Ibn Hazm said in Kitab Maratib al-Ijma': they agreed that if the seller discloses a defect to the buyer, specifies its amount and makes him aware of it, and the buyer consents, he is bound: no return for that defect (Takmilat al-Majmu' 12/121; Maratib al-Ijma' p. 88).
• The third: that the defect not disappear before the rescission. If he buys a sick animal, does not rescind the sale, and then the illness passes in a manner that leaves its recurrence possible, he may no longer rescind on account of the illness, for it passed away before the return; and the option was established to avert a harm, and the harm has ceased: the return is only for the defect, which is its cause, and the object of the contract has become sound, so the option cannot stand in the face of that soundness. This is the view of the majority of jurists, the Hanafis, the Malikis and the Shafi'is in the school; according to a Shafi'i view, the return does not lapse, for the option was established by the existence of the defect and does not lapse without the buyer's consent. If the return of the defect remains possible after its disappearance, the buyer may return the goods, as the Malikis stated (Tahbir al-Mukhtasar 3/613; Sharh Mukhtasar Khalil 5/136; al-Muntaqa 3/364; Hashiyat al-Sawi 6/457; Badai' al-Sanai' 5/275; Durar al-Hukkam 1/286; Sharh Fath al-Qadir 6/381, 369; al-Fatawa al-Hindiyya 3/66; al-Muhadhdhab 1/284; al-Iqna' 2/286; al-Fatawa al-Kubra of Ibn Hajar al-Haytami 2/244; Asna al-Matalib 2/73; al-Insaf 5/240; Kashshaf al-Qina' 3/253; al-Raud al-Murbi' 1/564).
• The fourth: that the defect not be removable except with hardship. If the defect can be removed without hardship, the right of option does not stand and the sale is not returned for it: for example, the factory stamp on fabric, if washing does not damage it, or if it can be placed on the lining side; likewise an impurity on a garment that neither spoils nor diminishes by washing, since it can be washed. This is what the Hanafis stated explicitly. It is said in Durar al-Hukkam: the condition of the defect is that it cannot be removed without hardship or harm; thus, the presence of an impurity on a garment that washing does not damage is not a defect, but if washing damages it, it is; the presence of traces of oil on a garment is a defect, for they cannot be removed from it without hardship (Durar al-Hukkam 1/290-291).

The Hanbalis said: no rescission for a light defect, such as a headache, a slight fever, the loss of a few common verses in a copy of the Quran (mushaf), for it is customary for a copy not to escape that; likewise a small amount of dust and clumps in grain, or a modest underpricing (ghabn). This applies to what does not lead to a case of riba, such as buying silver by weight with defective dirhams, or a measure of a commodity subject to riba for its like: the buyer may then return or keep without compensation. Ibn Muflih said: the apparent meaning is that if he knew of it, he has no option, without any known disagreement, for he entered the transaction with insight, as if the defect had been disclosed to him; as for claiming the depreciation: if he knew of it and did not consent, the option is established (al-Mubdi' 4/88; al-Furu' 4/78; al-Insaf 4/409; Kashshaf al-Qina' 3/254).

Ibn al-Zaghuni said: nothing is deducted from the wage of the Quran copyist for a light defect, so difficult is it to avoid most of the time; otherwise if the defect is not light but abundant: he then has no wage for what he misplaced, by putting it before or after its place without authorization, for there is no permission and the contract binds him; he must copy it in its place, and he owes the value of the paper he thus ruined by putting it earlier or later. If a defect appears in the hired work that normally reduces its wage, there is no arsh for the hirer if he chooses to keep the work, and he owes him the full wage (al-Mubdi' 4/88; Kashshaf al-Qina' 3/254).

The Malikis said: if the reduction is slight, such as the loss of a nail or of the little finger's nail in the palm of a slave, that does not establish the option for the buyer: he has only the return, owing nothing of reduction or retention, and receiving nothing of the value of the defect. The reason is the suspicion of deception weighing on the seller: that is why the return is due for a defect among the ordinary things from which one is not normally safe, whereas for what is customary and recurring, no compensation is due for whatever occurs of it. The same applies to the goods remaining in their state, and likewise to cauterization, eye inflammation, headache and fever, for these are customary things easily and quickly cured. This is the school of Ibn al-Qasim; Ashhab contradicted him regarding inflammation and fever, saying that the option is established for the buyer.

Al-Qadi Abu al-Walid al-Baji (may Allah have mercy on him) said: in my view Ibn al-Qasim only meant the light fever from which a quick cure is hoped, excluding what is weaker and prevents any disposition of the goods; that is of greater gravity and occurs rarely, and the buyer does not return, except by returning the value of what the merchandise lost. 'Abd al-Rahman ibn Dinar transmitted from Ibn Kinana: if he buys a slave who falls ill in his hands, then discovers that he had the habit of running away, he does not return him until he recovers or dies; if he dies, he recovers what lies between the two values. 'Isa transmitted from Ibn al-Qasim, from Malik: he returns him as long as it is not a dreaded illness. According to this version, illnesses are of three kinds: light, with no option; intermediate, with the option; a dreaded illness, which prevents the return (al-Muntaqa 3/364).

If the seller plays down the importance of the defect, saying that it is mild, easy to remove or inexpensive to repair, and the buyer accepts it, and then the opposite appears, what becomes of the option for defect after the buyer's consent? The Malikis stated that the option of return is then established for the buyer, as long as no new defect appears in his hands: he chooses between the return and the arsh. It is related in the Nawazil of al-Wansharisi that someone was asked about a man who had bought a mount bearing a spear wound: he had accepted it after the seller told him it was a harmless wound; then this buyer was absent for about a year, and the wound proved serious. Answer: if no destructive defect occurs in his hands, he has the choice between returning it or keeping it, without receiving anything of the value of the defect; if a defect then occurs with the buyer, he may, if he wishes, return it with the value of the defect that occurred, or keep it while taking the value that separates health from illness (al-Mi'yar of al-Wansharisi 5/178).

The fifth condition: that the seller have stipulated innocence from the defect in the place of the contract. If he did stipulate it, the scholars have differed: is the option established or not? The Hanafis, the Shafi'is according to the soundest view, and the Hanbalis according to one version, hold in sum that whoever buys merchandise with the seller's stipulation that he is free of every defect: the sale is valid and the buyer has no option, for the condition of innocence from defect in a sale is valid; the seller has thus waived his right, and this waiver is valid, so that the option lapses necessarily, according to what is narrated that the Prophet (peace be upon him) said to two men litigating over an inheritance effaced by time:

"Refer to arbitration, seek the right, and let one of you release the other."Good (hasan) hadith, narrated by Abu Dawud (3584)

This shows that waiving an unknown right is permitted; this waiver being the abandonment of a right that requires no delivery of property, it is valid with the unknown, like manumission and divorce; no difference between the animal and other things: what is established in one is established in the other. The view of 'Uthman (may Allah be pleased with him) was contradicted by Ibn 'Omar, and the view of a Companion when contradicted no longer has the value of proof (Mukhtasar Ikhtilaf al-'Ulama' of al-Tahawi 3/142; Sharh Fath al-Qadir 6/399; al-Kafi 349; al-Dhakhira 5/90-91; al-Hawi al-Kabir 5/271-272; al-Muhadhdhab 1/288; al-Tanbih 95; al-Wasit 3/524-526; Mughni al-Muhtaj 2/504-505; Kifayat al-Akhyar 295; Asna al-Matalib 2/63; al-Mughni 4/129; al-Fatawa al-Kubra 4/471).

The Hanafis said: a sale with the condition of innocence from defects is permissible, for the animal as for other things; innocence covers what the seller knows and what he does not know, what the buyer noticed and what he did not notice, whether he named the kind of defects or not, whether he pointed to them or not. The seller is innocent of every defect existing at the time of the sale, and of what occurs after it until the time of delivery, according to Abu Hanifa and Abu Yusuf; Muhammad said that he is not innocent of the defect that occurs. If the seller stipulates that he is innocent of every defect the goods have, without mentioning what will occur, the clause does not extend to the defect that occurs, according to all of them; and if he specifies a kind of defects, the specification is valid. If he sells with the condition of innocence from every defect present or to come, the sale is invalid with this clause. If the parties dispute whether a defect occurred after the contract or already existed, this has no effect according to Abu Hanifa and Abu Yusuf: the words of innocence cover the defect that occurs, both explicitly and by implication.

Explicitly, for innocence covers all defects in general, or a given kind of defects in general terms, and it cannot be restricted to the defects existing at the contract without evidence. By implication, for the seller's purpose in stipulating this clause is to close the path of return, which only happens by including the defect that occurs. According to Muhammad, the seller's word prevails with his oath, on the basis of his knowledge that the defect occurred, for the invalidity of the buyer's right of rescission is apparent because of the condition of innocence, whereas the existence of a right of rescission for a hidden defect is obscure: whoever claims the obscure in order to remove the apparent is believed only with proof. Innocence from the defect presupposes its existence, and innocence regarding what does not exist is inconceivable; the defect that occurs did not exist at the time of the sale and therefore does not fall under the innocence; if it falls under it, it is only by reference to the time of its occurrence, and innocence does not bear such a reference, for it contains an idea of appropriation. That is why the defect that occurs is not covered explicitly: with the absolute formula, it is better. This is if the seller expressed himself in absolute terms; if he granted innocence restricted to the defect existing at the time of the sale and they dispute as we have mentioned, the buyer's word prevails (Badai' al-Sanai' 5/277; al-Fatawa al-Hindiyya 3/94-95; Sharh Fath al-Qadir 6/399; Durar al-Hukkam 6/245).

The Shafi'is said: if someone sells an object with the stipulation of innocence from defects, the question is disputed; the sound view is that the seller is innocent of every hidden defect of the animal that he did not know of, excluding all others, according to the story of Ibn 'Omar (may Allah be pleased with him), who sold a young man for eight hundred, selling him with innocence. The buyer said to Ibn 'Omar: this slave has an illness you did not name to me. They took their dispute to 'Uthman (may Allah be pleased with him), who ruled that Ibn 'Omar was to swear that he had sold the slave without knowing of any illness in him. Abdallah refused to swear, took the slave back and sold him again for one thousand five hundred (narrated by Imam Malik in the Muwatta, 1297, chapter on the defect in slaves). Uthman's ruling shows that the seller is innocent of the defect of the animal that he did not know of.

The difference between the animal and other things is what al-Shafi'i said: the animal eats whether sound or sick, its states change quickly, and it is rarely free of defect, hidden or visible, hence the seller's need for this clause in order to trust the binding force of the contract. The difference between the known defect and the unknown is that concealing the known is disguise and fraud: one is not innocent of it. The difference between the apparent and the hidden is that the apparent is easy to inspect and is usually known: we have given it the status of the known, though it may sometimes remain hidden through rarity. It follows that the seller is innocent neither of the apparent defects of the animal, nor of any defect, apparent or hidden, of what is not an animal, such as garments and real estate (Kifayat al-Akhyar 295; al-Hawi al-Kabir 5/271, 273; al-Muhadhdhab 1/288; al-Tanbih 95; al-Wasit 3/524-526; Mughni al-Muhtaj 2/504-505; Asna al-Matalib 2/63).

Al-Mawardi (may Allah have mercy on him) said: know that the sale with the condition of innocence from defects falls into three categories: the first, in which the seller is innocent of named defects of which the buyer was aware; the second, in which he is innocent of named defects of which the buyer was not aware; the third, in which he is innocent of every defect, without naming them and without the buyer being aware of them. The first category is a valid innocence, belonging to a permissible sale: it denies neither the uncertainty of the innocence nor the binding force of the condition in the contract; if the buyer finds in the merchandise defects other than those, he may return it; if he finds only those, he may not return it.

The second category subdivides into two: permanent defects, such as leprosy and elephantiasis; or non-permanent ones, such as running away and theft. If they are not permanent, innocence by their mere naming is valid, for they are not visible, which made knowledge of them impossible; the naming suffices, for the price reduction caused by the defect increases with it and decreases with it, so that naming it, without seeing it, amounts to knowledge of the defect. As for the third category, what al-Shafi'i affirmed, taking up the disagreement of Abu Hanifa and Ibn Abi Layla, is that the soundest view, in the case of the animal, is the one established by the ruling of Uthman ibn Affan (may Allah be pleased with him): that the seller be innocent of every defect he did not know of, and that he not be innocent of a defect he knew of unless he names it to the seller and makes him aware of it; and that the animal differs from the rest. He said, in his disagreement with Malik: if one were to hold that whoever sells with innocence is innocent of what he knows as of what he does not know, that would be a school contradicted by proof.

Al-Shafi'i's companions divided, according to the transmitted versions, into three schools: the first, that of Abu Ishaq al-Marwazi and Abu Ali ibn Khayran: the question has a single answer: the seller is innocent, in the case of the animal, of every defect he did not know of, excluding what he knew of, and he is innocent of no defect in what is not an animal, whether he knew of it or not. The second, that of Abu Ali ibn Abi Hurayra: he is innocent, in the animal, of what he did not know of, excluding what he knew of; he is innocent, in what is not an animal, only of what he knew of; is he innocent of what he did not know of? Two views. The third, that of Abu al-Abbas ibn Surayj, Abu Sa'id al-Istakhri and Abu Hafs ibn al-Wakil: the question comprises three views: the first, that he is innocent of every defect, known or unknown, in the animal as elsewhere: this is Abu Hanifa's view; the second, that he is innocent of no defect at all, known or unknown, in the animal or elsewhere; the third, that he is innocent, in the animal, of what he did not know of, excluding what he knew of, and that he is innocent of no defect in what is not an animal.

If one holds the first view, according to which he is innocent of every defect, as Abu Hanifa said, its proof is the saying of the Messenger of Allah (peace be upon him): "The believers are bound by their conditions", as well as what is narrated of two men who took their dispute, over an inheritance effaced and ancient, to the Messenger of Allah (peace be upon him), who said to them:

"You come to me to litigate; perhaps one of you is more eloquent in his argument. Whoever is granted by me a part of his brother's right must not take it: I only cut out for him a piece of the Fire." The two wept, and each said: I renounce my right in favor of my companion. He said: "No, divide it, refer to arbitration, and let each of you release the other."Good (hasan) hadith, narrated by Abu Dawud (3584)

By ordering them to release themselves from that ancient and unknown inheritance, he showed the permissibility of waiving an unknown right; the waiver being the abandonment of a right, it is valid with the unknown as with the known, like manumission; what does not require a delivery of property is valid despite ignorance, whereas what requires it is not, like the sale. The waiver requiring no delivery, it is valid with the unknown. If one holds the second view, according to which the seller is innocent of no defect, its proof is the prohibition of uncertainty by the Messenger of Allah (peace be upon him): the waiver of an unknown right is uncertain, for its measure is unknown. The waiver is like the gift, except that it concerns what lies in liability (dhimma) whereas the gift concerns existing bodies: the gift of the unknown not being valid, the waiver of the unknown is not valid either. Every avoidable ignorance is not excused, such as ignorance of the accessories of the merchandise: the foundations, the limits of the walls, the silt of the well. The return for defect being due after the binding force of the contract, it is not permitted to extinguish it by clause before that binding force, for that would be waiving a right before its obligation: do you not see that if the preemptor waived his right before the purchase, his right of preemption would not lapse after the purchase, since he waived it before its obligation? The same applies to the sale with the condition of innocence.

If one holds the third view, according to which he is innocent, in the animal, of what he did not know of, and not innocent, outside the animal, of what he knew of as of what he did not know of, its proof is the ruling of Uthman, as well as what is narrated: Zayd ibn Thabit bought from Abdallah ibn 'Omar (may Allah be pleased with them) a slave for eight hundred dirhams with the condition of innocence; he found a defect in him and wanted to return him to Ibn 'Omar, who refused. They took the dispute to Uthman ibn Affan (may Allah be pleased with him), who said to Ibn 'Omar: will you swear that you did not know of this defect? He dreaded the oath, took the slave back and sold him again for one thousand six hundred dirhams, saying: I left the oath to Allah and He compensated me. Uthman thus established the distinction, in the defects of the animal, between the known defect and the unknown, and ruled on the innocence from the unknown; Zayd ibn Thabit and Ibn 'Omar followed him, for Zayd accepted his ruling, and Ibn 'Omar said nothing contrary: he only abstained from taking the oath, the defect being among those he did not know of.

Al-Shafi'i then explained that the animal differs from the rest because it feeds whether in health or in sickness, its natures change, and it is rarely free of defect, even a hidden one: one can therefore neither avoid its hidden defects by indicating them nor know of them; it is not so for what is not an animal, which may be free of defects and whose defects can be avoided by designating them, given their visibility. The distinction between the animal and the rest is thus established in substance, in addition to the ruling of Uthman (may Allah be pleased with him) (al-Hawi al-Kabir 5/271, 273; Raudat al-Talibin 3/124).

The Malikis, the Hanbalis in the school, and the Shafi'is according to one view, hold that the stipulation of innocence from defects is not valid: whoever sells merchandise declaring that it has no defect, and a defect appears, cannot rely on that clause, and the buyer returns the goods for the old defect discovered; innocence benefits the seller only for slaves, according to the Malikis. The Shafi'is founded the prohibition on the Prophet's (peace be upon him) prohibition of uncertainty, the waiver of the unknown being uncertain, for its measure is unknown; and because the return for defect is due after the binding force of the contract, it is not permitted to extinguish it by clause before, for that would be waiving a right before its obligation (al-Hawi al-Kabir 5/272-273). Here is the detail:

The Malikis said: the sale of innocence is not permitted for any edible or drinkable commodity, nor for any other merchandise: it is valid only for slaves exclusively. The seller's disclaimer does not protect him from the defects he does not know of in a commodity: if he sells merchandise declaring that it has no defect and a defect appears, the clause is not applied and the buyer returns the goods for the old defect he finds in them; innocence benefits only the slave, if he was sold with innocence from defects and the buyer discovers an old defect known to the seller: no return, but subject to two conditions.

• The first: that the seller be unaware of it; if he knows of it, the disclaimer does not protect him, unless he detailed it or showed it.
• The second: if the slave resided a long time with his seller; some fixed the duration at six months or more, contrary to the case of a short stay with his owner, where the disclaimer does not protect against unknown defects and the buyer may return the goods if he finds a defect in them. For slaves conceal their defects: the owner cannot rely on his disclaimer if the stay was short; a long duration, on the other hand, reveals what is hidden; if no defect appears to his master, the absence of defect is likely and the disclaimer protects him (al-Istidhkar 6/283; al-Kafi 349; al-Ishraf 2/494, no. 812; Tahbir al-Mukhtasar 3/605; al-Sharh al-Kabir with the notes of al-Dasuqi 4/181; Hashiyat al-Sawi 6/455; Sharh Mukhtasar Khalil 5/129).

The Hanbalis said in the school: whoever sells a thing or anything else with innocence from every defect is not innocent, whether the seller knew of it or not; likewise if he neither generalized nor specified the innocence, saying for example: innocent of such-and-such defect, if it is present.

Whoever buys food that is closed and breaks it, finding it spoiled

The reason is that the option is established after the sale and does not lapse, like the right of preemption (shuf'a): if the buyer finds a defect in the merchandise, he has the choice, this option being established only after the sale, so that its prior waiver does not cancel it. The clause is invalid and the sale is valid according to the soundest view of the school, for Ibn 'Omar (may Allah be pleased with him) sold with the condition of innocence and they agreed on the validity of his sale, with no one disapproving of it; the condition therefore does not prevent the return: its presence is like its absence. According to Imam Ahmad, the seller is innocent, unless he knew of the defect and concealed it; the view chosen by Shaykh Taqi al-Din. Ibn Hani transmitted that if the seller specifies the defect, the clause is valid, for it constitutes an accommodation in the sale, like the term and the option (al-Mughni 4/129; al-Ifsah 1/388-389; I'lam al-Muwaqqi'in 3/391; Sharh al-Zarkashi 2/73; al-Insaf 4/359-360; al-Raud al-Murbi' 1/557).

The jurists have differed over the case of one who buys food that is closed, whose defect appears only by breaking it, such as a watermelon, a pomegranate, a walnut or an egg, breaks it and finds it spoiled: does he have the option of return or not? The Malikis in the famous view and the Hanbalis according to one version hold that nothing can be claimed from the seller: neither deception nor negligence can be imputed to him, since he did not know of the defect and could discover it only by breaking it; the case is like innocence from defects.

The Malikis said: what cannot be discovered except by altering the merchandise itself is not a defect, according to the famous view, and the buyer has no claim against the seller in such a case, whether it is an animal or something else: the greenness of the sheep's stomach, the woodworm after splitting, the internal rot of the walnut, the bitterness of the cucumber and the like; unless the return has been stipulated, in which case the clause applies, for it has a purpose and a material effect, and usage is like a condition. Sometimes the defect can be discovered before the alteration: the seller deceives by knowing of it without disclosing it: his status is indisputably that of the deceiver, in matters of return as elsewhere; sometimes the seller does not in fact know of it: the buyer may then keep or return, unless a loss occurs in his hands: he then has only the arsh of the old defect; without loss, he returns the goods along with what was deducted: this is the relied-upon view.

As for the egg, the buyer may return it and recover the full price, broken or not, with or without deception, on condition that it is then not lawful to eat. If it is merely advanced in state and the seller is not a deceiver, there is no return: he recovers what separates health from illness: the goods are appraised on the day of the sale as sound without defect, then as sound but defective; for example, if its sound value without defect is ten and its sound defective value eight, he recovers the corresponding fraction of the price, the fifth; this if the goods still have a value on the day of the sale after breaking; otherwise he recovers the full price. Ibn al-Qasim said: that is if he broke it in the seller's presence; if he did so after a few days, there is no return, for it is unknown whether it spoiled with the seller or with the buyer: Malik said this (Sharh al-Kharshi 5/130-131).

It is related in the Mudawwana, chapter on what has been said concerning wood, eggs, ranj (coconut) and cucumber containing a defect. Ibn al-Qasim said: everything resembling wood, whose defect people do not know because it is internal, and whose defect appears only after splitting: if the buyer splits it and the internal defect appears, it remains binding upon him, and nothing is owed by the seller. I asked: and the ranj, which is the coconut, the walnut, the cucumber, the watermelon and the egg that a man buys and finds spoiled? He replied: as for the ranj and the walnut, I do not see that they are returned, they belong to the buyer; as for the egg, it belongs to the seller and is returned; as for the cucumber, the market people return it if they find it bitter. Malik said: I do not know on what basis they did that; I disapprove of this practice and I do not see that it be returned. I asked: why did Malik have the egg returned, among these things? He replied: because knowledge of the egg's spoilage is apparent and known; it is not internal like the rest (al-Mudawwana al-Kubra 4/346).

The majority of jurists, namely the Hanafis, the Shafi'is, the Hanbalis in the school, and the Malikis according to one view, hold that whoever buys closed food whose defect appears only by breaking it, and breaks it, if the defect strips it of all value, has the right to return it to the seller: the contract of sale implied the soundness of a merchandise the buyer could not inspect; found defective, the option is established for him. The seller deserves the price only of the defective goods, not of the sound, since he was not their owner in a sound state: obliging him to the full price therefore makes no sense; his lack of negligence does not imply that he is entitled to the price of goods he did not deliver, as in the case of the unknown defect in the slave: it then appears that the sale is invalid, for it is the sale of what is not property, and the sale of what is not property does not conclude, as if one bought a slave and then discovered that he is free.

If the broken merchandise no longer has value or use, such as a spoiled chicken egg, a blackened pomegranate, a ruined walnut, a spoiled watermelon, the buyer recovers the full price: the invalidity of the contract appears from the outset, for it bore upon a thing without use, and the sale of what has no use is not valid, like insects and carrion. The Hanbalis add that he need not return the merchandise to the seller, since it is of no further use. If the defect retains a value, as with the coconut, the ostrich egg or the watermelon that keeps some benefit: when the buyer breaks it, one examines: if breaking is indispensable in order to know the merchandise, the buyer chooses between returning it while claiming the arsh of the break and taking the price, or taking the arsh of the defect, which is the fraction between the sound state and the defective state: such is the apparent meaning of al-Khiraqi's words and one of the two versions of the Hanbalis, for this is a reduction that does not prevent the return, so the arsh is owed, like the milk of the milch animal after milking or that of the virgin after consummation of the marriage.

The Shafi'is in the most apparent view, and the Hanbalis according to one version (the qadi's view), say: no arsh for the breaking, for it occurred by way of inspecting the defect, and the seller allowed it to the buyer, knowing that soundness cannot be known otherwise: the breaking therefore took place by the seller's permission and does not prevent the return. If the breaking is not indispensable, the merchandise being inspectable without it, but without the breaking destroying it entirely: the status is that which precedes, according to al-Khiraqi and the qadi's view as well: the buyer chooses between returning the goods with the arsh of the break while taking the price, or taking the arsh of the defect: this is one of Ahmad's two versions; the other version: no return, but only the arsh of the defect: this is the view of Abu Hanifa and al-Shafi'i. Ibn Qudama (may Allah have mercy on him) said: if he breaks it in such a way that no value remains, he has only the arsh of the defect, for he destroyed it; the arsh of the defect is the fraction between the sound and the defective out of the price: the merchandise is appraised as sound, then as defective without breaking, and the buyer receives the difference (al-Mughni 4/122-123).

Al-Kasani (may Allah have mercy on him) said: if he buys closed food, such as the watermelon, the walnut, the cucumber, the melon, the pomegranate, the egg and the like, and breaks it finding it spoiled, two cases present themselves at the outset: he finds it entirely spoiled, or partly spoiled and partly sound. If he finds it entirely spoiled and without any use, the buyer recovers the full price from the seller, for it appears that the sale is invalid: it is the sale of what is not property, which does not conclude, as if one bought a slave and then discovered that he is free. If the food retains a use in general, the buyer may not return it for the defect according to us, whereas according to al-Shafi'i (may Allah have mercy on him) he may return it.

His proof: the seller, in selling it, allowed him the breaking, which therefore took place by the seller's permission and does not prevent the return. Our answer: the condition of the return is that the goods returned be, at the time of return, in the state that was theirs at the time of possession; now they were altered by an additional defect, the breaking: returning them would be returning them defective with a double defect, and the condition of the return disappears. As for the permission of the breaking: yes, but in the sense that the seller allowed him to break by establishing ownership for him; the buyer, in breaking, disposes of his own property and not of the seller's on his order: this therefore does not indicate his consent to the breaking.

If the buyer finds one part spoiled and one part sound: if the spoiled part is large, he recovers the full price, for it appears that the sale is invalid in the spoiled proportion: that being not property, its invalidity carries over to the rest, as if one combined a free man and a slave to sell them in a single transaction. If the spoiled part is small, the same applies by analogy; by juridical preference (istihsan), the sale is valid as a whole: he may neither return it nor claim anything, for the slight corruption of these things is inevitable in ordinary usage: it falls under necessity and equals nothing.

Some of our shaykhs brought another detail: if he finds it entirely spoiled, if its peel has no value, the sale is invalid, for it appears that he sold what is not property; if the peel has a value, like the pomegranate, the sale remains valid: the seller has the choice: he may consent to the diminished goods, accept the peel and return the full price, or refuse, for the buyer was altered by an additional defect; the seller then pays the share of the defect to guarantee the buyer's right. If he finds one part spoiled, the same detail applies: if the peel has no value, he recovers his share of the price; if the peel has a value, he recovers the share of the defect without the peel, the part being judged like the whole, unless the spoiled part is so small that foods of this kind are not normally free of such: no return and no claim. And Allah knows best (Badai' al-Sanai' 5/284).

Al-Baghdadi (may Allah have mercy on him) said: if he buys watermelons, breaks one after possession and finds it unusable, he may recover its share of the price, without returning the others, unless he establishes proof of the corruption of what remains. The watermelon is not here like the walnut: the walnut is a single thing, and if a part is spoiled, the whole is returned; the same applies to the almond, the hazelnut, the pistachio and the egg; as for the watermelon, the pomegranate, the quince and the melon, only the spoiled unit is returned (Majma' al-Damanat 522; al-Ikhtiyar 2/24).

Imam al-Nawawi (may Allah have mercy on him) said: if one buys closed food, such as the ranj, the watermelon, the pomegranate, the walnut, the almond, the hazelnut or the egg, breaks it and finds it spoiled: if the spoilage has no value, like the rotten egg that is good for nothing, or the completely altered watermelon, one recovers the full price, as al-Shafi'i affirmed. How? Most of the companions said: the invalidity of the sale appears because it bore upon a thing of no value. Al-Qaffal and others said: the invalidity does not appear: just as one recovers a part of the price for the reduction of a part of the merchandise, one recovers the whole for the total loss; the benefit of the dispute appears in the remaining peels, when they are usable, down to cleaning the place.

If the spoilage retains a value, like the ranj, the ostrich egg or the watermelon found sour or altered at its edges, breaking has two cases: the first, when the spoilage can be ascertained only by an equivalent breaking: two views, the more apparent of which among most is that the buyer may return by constraint, like the milch animal in mid-milking; the other view: no: he is then like the defects that occur: the buyer recovers the arsh of the old defect, or adds the arsh of the reduction to it and returns, as has preceded. According to the first view, is the arsh of the breaking owed? Two views: the more apparent is no, for he is excused; the other: it is owed to the extent of what separates the value of the goods sound but rotten at the core from its value broken and rotten at the core, without regard to the price. The second case: when the spoilage can be ascertained with less than that breaking: no return, according to the school, as with the other defects; two views have been transmitted. Once this is known: breaking the walnut and piercing the ranj belong to the first case; breaking the ranj and cracking the ostrich egg to the second. Likewise, piercing the sour watermelon if its acidity can be known by inserting something into it; the large hole if one can be content with the small one; alteration being known only by appraisal; one may need the split in order to know the state, and the state of eggs can be known by shaking them, without breaking them.

If sweetness has been stipulated for the pomegranate and it proves sour by inserting something into it, it is returned; if it appears by splitting it, it is not. If one buys a garment, unfolds it and finds a defect: if unfolding does not diminish it, one returns it; if it diminishes it, like the fabric folded in two stuck layers, this follows the coconut according to the mentioned detail, whether the unfolding exceeds or not what is needed for inspection, as with the unfolding by one who does not know: the buyer may claim its arsh, and he is entitled to it in every case (Raudat al-Talibin 3/135, 137; see Mukhtasar Ikhtilaf al-'Ulama' 3/151, Badai' al-Sanai' 5/284, al-Ikhtiyar 2/24, al-Kafi 349, al-Dhakhira 5/90-91, Sharh al-Kharshi 5/131, al-Hawi al-Kabir 5/262-263, Asna al-Matalib 2/70, Mughni al-Muhtaj 2/516, al-Mughni 4/122-123, al-Kafi 2/92, Sharh al-Zarkashi 2/71, al-Mubdi' 4/95, al-Insaf 4/424, Matalib Uli al-Nuha 3/118).

Defective goods increased in the buyer's hands: is it returned together with the increase?

If someone buys a thing, then an increase occurs in his hands, then he discovers a defect after possession: the increase is either attached or separate. The attached increase is either generated by the origin itself, such as fatness, growth, learning, pregnancy before delivery, the fruit before its ripening: it does not prevent the return, the buyer being able to return it together with the origin, without disagreement among the jurists of the four schools, for it follows the origin at the time of rescission: through the return, the contract is rescinded for the intended origin and for the increase as its follower. Or it is not generated by the origin, such as dye on the fabric, shortening or honey mixed with roasted flour, a construction upon land and the like: it prevents the return for defect according to the Hanafis, for this increase is not a follower but an origin in itself: the status of sale is not established in it in any way.

If he returned the merchandise, he would have either to return it alone without the increase, which is impossible because they cannot be separated, or to return it with the increase; but the increase is not a follower in the contract and therefore is not one in the rescission. Moreover, the buyer, by creating this increase, has become a possessor of the merchandise: it is as if it occurred after possession, and what occurs after possession prevents the return for defect, except by the agreement of both parties, the operation becoming like a new sale.

As for the separate increase, it is of two kinds. The first: an increase that does not come from the merchandise, such as earnings and wages: it belongs to the buyer against his guarantee, for if the goods perish, they perish from the buyer's property; such is the meaning of his saying (peace be upon him): "Yield follows guarantee". Abu Hanifa, Malik, al-Shafi'i and Ahmad said this, with no disagreement among them, according to the hadith of A'isha (may Allah be pleased with her): a man bought a young slave and employed him for the time Allah willed, then found a defect in him and brought a claim before the Prophet (peace be upon him), who had him returned to him; the man said: O Messenger of Allah, my slave has worked for me. The Messenger of Allah said:

"Yield follows guarantee." In another version, the seller said: that is my slave's produce; the Prophet (peace be upon him) said: "Produce follows guarantee."Good (hasan) hadith, narrated by Ahmad (24558), Abu Dawud (3508), al-Tirmidhi (1285), al-Nasa'i (4490) and Ibn Majah (2242)

This means that the produce of a thing belongs to the one who bears its guarantee; now the guarantee of the merchandise, after the contract, rests upon the buyer, and the name of produce applies to the fruit, the offspring, and everything of that kind.

The second kind is an increase coming from the merchandise itself, such as the offspring, the fruit, the milk. The jurists divided over it into three views. The first, that of the Shafi'is and the Hanbalis in the school: this increase also belongs to the buyer, and the origin is returned without it, for it arose in the buyer's ownership and does not prevent the return, as if it were in the seller's hands; it is like the earnings: the growth is separate, so the origin may be returned without it; moreover, growth has ownership as its cause, not the contract: if the contract were its cause, it would return to the seller upon rescission. Jalal al-Din al-Mahalli (may Allah have mercy on him) said: the separate increase, such as the offspring, the fruit or the wage arising from the merchandise, does not prevent the return for defect: it belongs to the buyer if he returns the merchandise. And he said: if he sold a pregnant animal while it was defective, and the fetus separates, he returns it with it.

Al-Qalyubi said in his notes: "like the offspring", that is, the one it conceived after the contract; the example of the offspring is a reply to Imam Abu Hanifa, who held that the return is prevented, and to Imam Malik, who held that it is returned with the mother. "And the fruit": that which occurred after the contract, manumitted or not: if it existed at the contract and was manumitted, it belongs to the seller; otherwise it is like the fetus. Likewise the yield of wool, camel hair, egg and milk: what existed at the contract belongs to the seller, like the pregnant animal; what occurred after belongs to the buyer (Kanz al-Raghibin 2/521; Hashiyat al-Qalyubi 2/521-522). The Hanbalis in the second version said: he has only to return both or keep both with the arsh. The author of Bulghat al-Salik said: growth occurring from the merchandise itself, such as the fruit of the tree and the offspring of the animal, occurring after the sale, when he then discovers the defect: two versions: one, he has only to return both or keep both with the arsh; the other: he returns the origin and keeps the growth (Bulghat al-Salik p. 185).

The second view, that of the Malikis: if the growth is a fruit, he does not return it; if it is an offspring, he returns it with the merchandise, for the return is a ruling that extends to the offspring. I said (in the Mudawwana): if the house suffers another defect in the buyer's hands, does the buyer return with it what it suffered in his hands? He replied: yes. I asked: if I buy sheep or cattle, milk them and shear them, offspring are born to me, and then a defect strikes the mothers: may I return the mothers and keep their wool, their offspring and their milk? Malik said: as for the offspring, they are returned with the mothers if he wishes to return for the defect. Ibn al-Qasim said: as for their wool, their hair and their clarified butter, that is not returned with the flock, for it is like the produce.

The third view, that of the Hanafis: growth occurring from the merchandise itself in the buyer's hands prevents the return: the origin cannot be returned without it, for it is one of its causes, and the contract cannot be lifted while its cause remains; nor can it be returned with the origin, for the contract did not cover it. The buyer recovers the share of the defect. Their proof: the increase is sold as a follower of the status of the origin; by returning without the increase, the contract is rescinded for the intended origin, and the increase remains in the buyer's hands as an intended merchandise without price, acquired by sale: which is the meaning of riba according to the usage of the Law. And returning it with the increase would result in the offspring that follows being, after the return, the profit of a thing not guaranteed, since it occurred under the buyer's guarantee.

Al-Kasani (may Allah have mercy on him) said: the increase is sold as a follower of the status of the origin; by returning without it, the contract is rescinded for the intended origin, and the increase remains as an intended merchandise without price, acquired by sale: this is the meaning of riba according to the usage of the Law. It is not so for the increase prior to possession: it is not returned alone either, as a precaution against riba: it is returned with the origin, and that return involves no riba. Why is the origin not returned with the increase here, whereas it is returned there? The refusal to return the origin without the increase leads to riba, as has been said; and returning it with the increase makes the offspring that follows the profit of a thing not guaranteed: the contract is rescinded for the increase, which returns to the seller without any price in the rescission, the buyer having no share of the price: the offspring goes back to the seller as the profit of a thing not guaranteed, since it occurred under the buyer's guarantee; the offspring prior to possession, on the other hand, occurred under the seller's guarantee: if the contract were rescinded on its account, it would not be the profit of a thing not guaranteed but of a thing guaranteed.

If the increase is separate, not generated by the origin, the return for defect is not prevented: the origin is returned to the seller and the increase belongs to the buyer in his favor, for this increase is not sold at all, the status of sale not being established in it: it was acquired by a very strong cause; the ruling of rescission can therefore be established in it without the increase: the origin is returned, the contract is rescinded for it, and the increase remains the buyer's property by the existence of a legal cause of ownership: this is favorable to him. This is if the increase still exists in the buyer's hands. If it perished, its loss is either by a heavenly calamity, by the buyer's act, or by the act of a third party. By a heavenly calamity: the buyer returns the origin with the defect, and the increase is as if it had never existed. By the buyer's act: the seller has the choice: if he wishes, he accepts and recovers the full price; if he wishes, he refuses and receives the reduction of the defect, whether or not this destruction entailed a diminution of the origin, for destroying the increase is like destroying a part contiguous to the origin, since it is generated by it: this gives the seller an option. By the act of a third party: the buyer cannot return, for the third party guarantees the increase, and the guarantee stands in place of the thing: it is as if present, the return is prevented and he recovers the reduction of the defect (Badai' al-Sanai' 5/286; Majma' al-Damanat 479; Hashiyat Ibn Abidin 7/187, section on the types of increase of the merchandise).

Palm trees

I said (in the Mudawwana): do you know, concerning palm trees, anything from Malik if a man buys one and benefits from it for a time, and then a defect strikes it? He replied that Malik said: if he buys a palm tree and benefits from it for a time, then a defect manifests itself in it or is established in it, he recovers the price from his seller, and the yield follows the guarantee (al-Mudawwana al-Kubra 4/348-349).

A second defect occurring with the buyer before he knows of the first

The jurists have differed over the case of one who buys a defective thing without knowing it, then another defect occurs in his hands by heavenly calamity or otherwise, before he knows of the first: may he keep it while taking the arsh, or does he take the arsh while the return becomes impossible? The Hanafis, the Shafi'is and the Hanbalis according to one version hold that the buyer cannot compel the seller to take the return, but has the arsh of the old defect, for the return was established to avert a harm, and returning to the seller would harm him: he left his ownership sound and would come back to it defective; harm is not averted by harm: one must therefore recover the reduction.

The Hanafis said: unless the seller agrees to take it back defective, in which case the buyer is entitled to it, for the seller consented to waive his right and to bear the harm. If the seller consents and the buyer wants to keep the goods while recovering the share of the defect, this is not granted to him: either he keeps it without recovering the share of the defect, or he returns it. The form of recovery by reduction: the merchandise is appraised as if the old defect did not exist, then appraised with that defect; one looks at what the defect caused it to lose in value and relates it to the sound value: if the proportion is a tenth, he recovers a tenth of the price; if it is a half, the half.

For example, if he buys a garment for ten dirhams while its value is one hundred dirhams, and discovers a defect that reduces it by ten dirhams, another defect having occurred: he recovers a tenth of the price, that is, one dirham; if the defect reduces its value by twenty, he recovers a fifth of the price, that is, two dirhams. If he bought it for two hundred while its value is one hundred, and the defect reduces its value by ten: he recovers a tenth of the price, that is, twenty dirhams; if the defect reduces it by twenty: a fifth of the price, that is, forty (al-Jawhara al-Nayyira 3/63-64; al-Lubab 1/373; al-Hidaya 3/37; Sharh Fath al-Qadir 6/365; Tabyin al-Haqa'iq 4/34; al-Fatawa al-Hindiyya 3/83).

The Shafi'is said: if a defect occurs in the merchandise in the buyer's hands, by injury or calamity, and he then discovers an old defect, he cannot compel the return, for that would harm the seller; the buyer is not for all that required to accept it: the seller is informed. If he accepts the defective goods, the buyer is told: return it or keep it without anything. If he refuses: the buyer must add the arsh of the defect that occurred to the merchandise in order to return it, or the seller pays the buyer the arsh of the old defect so that he keeps the goods. If they agree on one of these two courses, it is done; if they dispute, one demanding the return with the arsh of the defect that occurred, the other keeping with the payment of the arsh of the old defect: three views: the first follows the buyer's word; the second the seller's view; the third, according to al-Nawawi and the soundest, follows the view of whoever demands keeping and the recovery of the arsh of the defect, whether seller or buyer.

The buyer's informing of the seller must be immediate: if he delays it without excuse, his right to the return and to the arsh lapses, unless the defect that occurred normally passes quickly, such as inflammation and fever: immediacy is then not required according to one of the two views, and he may wait for its passing so as to return the goods free of that defect. If the defect that occurred passes after the buyer has taken the arsh of the old defect, or after the judge has pronounced it without his having taken it: does he have the right to rescind and return the arsh? Two views, the sounder of which is no, even by mutual agreement, nor by judgment; the soundest view is that he has the right to rescind (Raudat al-Talibin 3/132-133; al-Iqna' 2/288).

The Malikis in the famous view and the Hanbalis in the soundest version hold that the buyer has the choice: if he wishes, he keeps the goods and takes the arsh; if he wishes, he returns them while returning the arsh of the defect that occurred in his hands and taking the price. Ibn Qudama (may Allah have mercy on him) said: our proof is the hadith of the milch animal: the Prophet (peace be upon him) ordered it returned after milking, with the compensation of its milk; Ahmad argued by the fact that Uthman ibn Affan ruled the return of a garment bearing a tear, even though it had been worn; moreover, the defect occurred in the buyer's hands: he has the choice between returning the merchandise with its arsh, or taking the arsh of the old defect, as if its occurrence had taken place for the inspection of the merchandise; the two defects have become equivalent, the seller having deceived and the buyer not having deceived: taking the latter's side is sounder; the return was permissible before the second defect occurred and only disappears upon proof; there is here neither consensus nor text, and analogy requires a principle, whereas what they adduced is not one: the permissibility remains.

The buyer therefore returns the arsh of the defect that occurred, for the merchandise as a whole is under his guarantee, and its parts likewise. If the defect that occurred passes away in the buyer's hands, he returns without arsh, according to both versions, and al-Shafi'i said so: the preventing cause has passed away while the cause of the return stands: its ruling is established (al-Mughni 4/111). Ibn Abd al-Barr (may Allah have mercy on him) said: for the one in whose hands a defect occurs in what he bought, and who then discovers a defect that existed with the seller: if the defect that occurred with the buyer is benign, reducing the price only by a negligible part, such as a light fever in a slave, a headache, a light inflammation, a crack of the body, a benign cauterization or a pain without gravity, he returns it to the seller with the old defect and its reduction of the price, owing him nothing. If the defect that occurred reduces the price without being destructive, he likewise returns it, along with what the defect that occurred reduced. If it is destructive, he recovers the arsh of the old defect and keeps the slave; it has been said that he then has the choice, facing a destructive defect that occurred in his hands, between returning the merchandise along with what the defect that occurred reduced, or keeping it while recovering the arsh of the defect discovered; whether the seller deceived or not, for the slave exclusively: the slave is not assimilated to what is not a slave in this (al-Kafi 350-351; see al-Muwatta 2/613, al-Istidhkar 6/285, Bidayat al-Mujtahid 2/136-137, al-Qawanin p. 176, 'Aqd al-Jawahir al-Thamina 2/713, Hashiyat al-Sawi 6/482, Manh al-Jalil 5/185, Sharh al-Zarqani 3/330).

This is if the seller did not deceive about the defect: for the deceiver, being a sinner, bears the consequence of his deception. That is why the Malikis said: bearing the arsh of the defect that occurred with the buyer, when he chooses the return, is the right of the one who did not deceive. If the seller deceived about the defect, the buyer returns the merchandise without paying anything for the defect that occurred, unless a loss prevents the return, such as the loss of the goods or of the greater part of their benefits: the arsh of the old defect then becomes obligatory ('Aqd al-Jawahir al-Thamina 2/713). Ibn Abd al-Barr (may Allah have mercy on him) said: he who sells a garment which the buyer cuts and sews, and then an old defect appears: if the seller concealed the defect, the buyer returns it and recovers the value of the sewing, the full price, owing nothing for the cutting; the seller, by deceiving and concealing, allowed him that cutting. This is if the buyer cut it to measure and the cutting ruined it; if he returns it for the defect about which he was deceived, he pays the value of what the cutting reduced.

If the seller did not know of the defect, the buyer chooses between returning it while paying what the cutting reduced, the value of the sewing entering into its appraisal, or keeping it while taking the arsh of the defect; the seller may make the buyer swear that he did not know of the defect before the cutting and did not wear it after learning of it. If the defect appeared before the cutting, the buyer chooses between keeping it without anything, or returning it and taking the price, whether the seller knew or not. If the buyer discovers the old defect after having dyed the garment with a dye that increases its price, or having worked it with a work that increases its value, he chooses: take from the seller the value of the defect and wear the garment, or return it, while being the seller's partner in the increase due to his work: this is the meaning of Malik's words in the Muwatta (al-Kafi 350-351).

Ibn Qudama (may Allah have mercy on him) said: unless the seller deceived about the defect: he is then bound to return the full price, as for all merchandise. Deception consists in concealing the defect from the buyer while knowing of it, or covering it in a way that makes the buyer believe its absence: the word derives from the dulsa, darkness, as if the seller placed the defect in darkness, hiding it from the buyer who neither sees nor knows it. Whether he knew of it and concealed it or merely covered it, both are forbidden deception. If the seller acts thus and the buyer discovers the defect only when faulting the merchandise in his hands, he returns the merchandise and takes the full price, with no arsh charged to him: whether the defect that occurred is the buyer's own act, such as consummating the marriage with a virgin or cutting the fabric, the act of another person, such as a third party's malice, the slave's act, such as theft and running away, or the act of Allah, such as illness; whether it reduced the merchandise or destroyed it entirely.

Ahmad said, concerning a man who bought a slave who ran away, the proof having been established that the habit of running away existed with the seller: he recovers the full price, for the seller deceived him, and the seller pursues his slave wherever he is: this is transmitted from al-Hakam and Malik; as if he had deceived him about the freedom of a slave woman. The apparent meaning of the hadith of the milch animal shows that what occurs in the buyer's hands is under his guarantee, whether the seller deceived or not: overmilking is a deception, and yet the guarantee of the milk did not lapse, the buyer owing it in a sa' of dates, even though overmilking had been forbidden.

"The sale of animals overmilked for deception (muhaffalat) is deception (khilaba), and deception is not lawful for a Muslim."Narrated by Ibn Majah (2341) and Ahmad in the Musnad (1/433), from Ibn Mas'ud (may Allah be pleased with him). Al-Hafiz said in al-Fath (4/367) that its chain contains a weakness; Ibn Abi Shayba and Abd al-Razzaq transmitted it as a Companion's report with an authentic chain

The Prophet's saying (peace be upon him): "Yield follows guarantee" shows that whoever receives the yield bears its guarantee, the Prophet having made the guarantee the cause of the yield: if the guarantee of the merchandise rested upon the seller, the yield would belong to him. The seller's guarantee is established only by text, consensus or analogy; we know of neither text nor consensus on this, and analogy requires a principle, none of which is seen here. This deception does not resemble the deception about the freedom of a slave woman in marriage: there, one turns against the deceiver, even if he is not her master; here, if the deception comes from the seller's agent, one does not turn against him (al-Mughni 4/113; see Sharh al-Zarkashi 2/68, al-Insaf 4/416-417).

Ibn Rushd (may Allah have mercy on him) said: the proof of those who hold that the buyer can only return the goods while paying the value of the defect, or keep them, is their unanimous agreement: if no defect occurs in the buyer's hands, the return is the only course; the state of this ruling must therefore persist even if a defect occurs with the buyer, against payment of the value of the defect that occurred. As for Malik: the rights of the seller and of the buyer being in conflict, he favored the buyer by giving him the choice, for the seller is either negligent, unaware of the defect the buyer knows of, or he knew of it and deceived. According to Malik as well, if the deception is established, the return is due without the buyer's paying the value of the defect that occurred; if the buyer dies because of that defect, it is guaranteed by the seller, contrary to the case where the deception is not established. Abu Muhammad's proof: it is an affair coming from Allah, as if it occurred in the seller's ownership; the return for defect shows that the sale did not truly conclude, only apparently; no Book nor Sunna obliges a responsible person to an indemnity with no effect upon the diminution, except to make the lot harder for one who guarantees the reduction that occurred by an act of Allah: such is the status of the defects that occur in the body (Bidayat al-Mujtahid 2/137).

If he discovers the defect after the goods have left his ownership or perished

The jurists have differed over one who buys a thing, then its ownership passes to another or it perishes, and who later discovers an old defect: is he entitled to the arsh or to nothing? Each school brings its detail. The Hanafis said: if the merchandise perishes in the buyer's hands and he then discovers a defect in it, he recovers the reduction, whether he learned of it before or after; likewise if the form of the merchandise changes to the point of acquiring a new name: the buyer cuts the fabric and sews it when it was cloth, or grinds the wheat that was grain and it becomes flour, then discovers a defect: he recovers the reduction. If he consumes it, no recovery takes place at all, without disagreement; likewise if he sold it or gave it away and then discovers the defect: no recovery, by consensus.

Exception: the food eaten, or the garment worn until it tears, and then the defect discovered: according to Abu Hanifa, he recovers nothing, for by eating the food and wearing the garment, the buyer removed them from his ownership in reality, ownership being established in them absolutely and not temporarily; the return is therefore prevented by an act guaranteed against in the merchandise, as if he had sold it. According to Abu Yusuf and Muhammad, he recovers the reduction of the defect, for eating and wearing are dispositions of the buyer within the purpose for which the goods were entrusted to him, a use and not a destruction: this resembles manumission. The food here means what is sold by volume or weight. If he eats a part and then learns of the defect, he does not return the rest and recovers no arsh, neither for what he ate nor for what remains, according to Abu Hanifa, the commodity being like a single thing. The transmission from Abu Yusuf and Muhammad has diverged: it is reported from them that he returns the rest and recovers the reduction of what he ate; it is also reported that he does not return the rest and recovers the arsh of the defect upon the whole. All this concerns partial consumption; if he sells a part of the commodity measured or weighed: according to both, he does not return the rest and recovers nothing; according to Muhammad, he returns the rest without recovering the reduction of what he sold; according to Muhammad again, he does not recover the reduction of the sold part and returns the rest with its share of the price.

In sum, the view given as fatwa: if he sells or eats a part, he returns the rest and recovers the reduction of what he ate, not of what he sold. The difference: consumption confirms the contract and its rulings, whereas selling interrupts ownership and thus its rulings. If he finds a defect in a part of the commodity measured or weighed, he may return it all or keep it all if the whole remained in his ownership without his disposing of any of it: one therefore distinguishes the case where the whole remains from the case of partial disposition by sale or consumption (Badai' al-Sanai' 5/290; Sharh Fath al-Qadir 6/366; al-'Inaya 9/45; al-Jawhara al-Nayyira 3/64, 67; al-Lubab 1/374; al-Ikhtiyar 2/24; Mukhtasar al-Wiqaya 2/53; Khulasat al-Dala'il 2/50; Hashiyat Ibn Abidin 5/21-22; al-Fatawa al-Hindiyya 2/79).

The Malikis said: if the merchandise has perished and the buyer then discovers an old defect, he has not the return but the arsh: the merchandise is appraised on the day it became the buyer's guarantee, sound at one hundred, defective at eighty; if the defect reduces it by a fifth of the value, he recovers a fifth of the price, whatever that price is. If the parties dispute over the description of the merchandise, the seller's word prevails if the defect has weakened, otherwise the buyer's. If rights have attached to the defective goods, by pledge, lease, loan for use (ariya) or usufruct (ikhdar), and this came from the buyer before he knew of the defect, this does not prevent the return if the goods are freed from it without change and remain in their state. Likewise, if the merchandise returns to its seller after having left his ownership without the buyer knowing of the defect, by return for defect or by renewed ownership, such as a sale, a gift or an inheritance: he may return it to his first seller.

If the buyer sold what he had bought before discovering the old defect, to a third party other than his seller: no recovery against his seller, whether he sold it at the same price, for less or for more. If he sold it to his own seller at the same price or more, with or without deception: no recovery of the buyer against his seller, nor of the seller against the buyer for the surplus. If the seller did not deceive: the merchandise is returned to the buyer become second seller at a higher price if the first seller wishes, the latter recovering his price; the buyer may then keep the defective goods or return them to his first seller while taking his price; the compensation takes place between them, and the surplus goes to the first seller. If he sold it to his first seller at a lower price, such as selling it for ten and buying it back for eight: the first seller completes the buyer's price by paying him the remaining two dirhams, with or without deception.

All this if the merchandise has not changed. If it has changed, a detail applies: the change is either intermediate, or very slight, or it removes from the intended purpose. In sum, the defect occurring with the buyer falls into three categories: removing from the purpose, very slight, or intermediate. If an intermediate defect occurs with the buyer and he discovers an old defect, he chooses between keeping the goods while taking from the seller the arsh of the old defect, or returning them while paying the arsh of the defect that occurred in his hands: this choice as long as the seller has not accepted the goods with the defect that occurred; afterwards, the defect that occurred is as if nonexistent and the buyer chooses between keeping without receiving anything or returning without owing anything. The appraisal of the old defect and of the defect that occurred passes through the appraisal of the merchandise, not of each in isolation: if its sound value is ten, eight with the old defect, six with the defect that occurred, the one who returns pays the seller two dinars, and the one who keeps takes two; if the price has risen or fallen, the difference belongs to him; the appraisal takes place on the day the merchandise entered the buyer's guarantee.

The very slight defect, such as eye inflammation, inflammation, headache, loss of a nail, light fever, consummating the marriage with a previously married woman, or an ordinary cut: the buyer then has no choice of keeping with the arsh: either he keeps without anything, or he returns without owing anything. If the defect occurring with the buyer is light, it is as if nonexistent: whoever returns the goods for the old defect owes nothing for the light one. The change that removes from the purpose, by loss of the intended benefits, prevents the return to the seller, but one recovers the old arsh: as if he bought a young one that grew old in his hands, or an old one that became senile, and then discovered an old defect: this prevents the return and obliges recovering the value of the defect, even if the seller objects. This is if the goods did not perish through a deceived defect: if the seller deceived through a destructive defect, the buyer recovers the full price without owing anything for what occurred in his hands. Whoever buys several units and discovers a defect in a part: if he returns, he recovers the fraction of the value of the merchandise, not his physical share, according to the famous view; Ashhab said that he recovers what corresponds to the defect of the merchandise (Tahbir al-Mukhtasar 3/617, 630; al-Ishraf 2/499; al-Sharh al-Kabir with the notes of al-Dasuqi 4/202, 213; Sharh Mukhtasar Khalil 5/138, 146; al-Fawakih al-Dawani 2/82; Mawahib al-Jalil 6/291, 310).

The Shafi'is said: if the merchandise perishes in the buyer's hands, outside the commodities subject to riba by kind, by heavenly calamity or otherwise, such as the death of the animal, the destruction of the fabric, the eating of the food, and he then comes to know of the defect, he recovers the arsh, the return being impossible by the physical or legal disappearance of the merchandise. The arsh is a part of the price, its proportion being that of the reduction of the defect upon the value of the sound goods in relation to the total value: the recovery of a part of the price is justified because if the merchandise had remained whole with the seller, it would have been guaranteed to him at the full price; by retaining a part of it, it is guaranteed to him for a part of the price. For example, the value is one hundred without the defect, ninety with the defect: the difference is a tenth: one recovers a tenth of the price; if the price is two hundred, twenty; if it is fifty, five. The value retained, according to the school, is the lesser of the two values, on the day of the sale and the day of possession: this is what most have determined; other views exist: the day of possession, or the day of the sale.

If he comes to know of the defect after the goods have left his ownership by compensation or otherwise, while they remain intact in the hands of a third party, or afterwards, such as goods pawned with someone other than the seller: no arsh according to the soundest view, for the buyer has not despaired of the return: the goods may come back to him. If ownership returns to him, the return becomes possible again, whether that return takes place by return for defect or otherwise, through a sale, a gift, a bequest, an inheritance or a mutual rescission (iqala): the obstacle having vanished. It has been said: if the goods come back to him otherwise than by return for defect, he no longer has the return, for he has made good the deficiency; contrary to the soundest view, the arsh is due to him, as if it had perished. If the return becomes impossible through destruction, the second buyer recovers the arsh from the first, and the first from his seller; he recovers before the second's loss while releasing him from all liability. The second buyer cannot return the goods to the first seller, for he did not buy from him (Raudat al-Talibin 3/125, 128; Mughni al-Muhtaj 2/506, 509; Kanz al-Raghibin with the notes of al-Qalyubi and 'Umayra 2/505, 509; al-Najm al-Wahhaj 4/130, 133; al-Dibaq 2/71, 73; Nihayat al-Muhtaj 4/45, 53).

The Hanbalis said: if the merchandise perishes, even by the buyer's act, such as consuming it, or if he sells it, gives it, pledges it or makes an endowment of it without knowing of the defect, then learns of it: the arsh becomes obligatory and the return lapses, its impossibility being established; the buyer's word on the value of the merchandise is accepted. The arsh becomes the buyer's property, in exchange for the vanished part of the merchandise. If the goods are returned to him while he knows of the defect, he may return them to his seller or take their arsh: the sale is no obstacle, his ownership having come back to him through the return. If the arsh of the defect has been taken from the first buyer and the second has not rescinded, the first has the arsh: the logical implication is not intended, he takes the arsh whether or not the second recovered his own.

If the buyer did that while knowing of the defect without choosing keeping, or if he disposed of the goods after knowing of the defect in a manner indicating consent, without having previously chosen keeping with the arsh: no arsh, for he consented to the defective goods: his right to the arsh lapses as does his right to the return. According to Imam Ahmad, and this is sounder: he has the arsh, as if he had chosen keeping before his disposition: although indicating consent along with the arsh, this equals keeping. If the buyer sells a part of the merchandise without knowing of the defect, he has the arsh of what remains without dispute, and does not return the rest to the seller, for the splitting would harm him: if he sells the half, he takes half of the arsh; if he sells the quarter, three quarters of the arsh; the arsh of the part sold: two versions, the sounder of which: he has that arsh too. If he sells a part while knowing of the defect: it is as if he had sold it all, according to the previous disagreement. If he dyes the defective merchandise or weaves it without knowing of the defect: he has the arsh, no return, for he has occupied the goods with his property, which is a bad form of association (al-Kafi 2/87; al-Sharh al-Kabir 4/94; Sharh al-Zarkashi 2/69; al-Mubdi' 4/93; Matalib Uli al-Nuha 3/171; al-Ta'liqa al-Kubra 3/513, 517; al-Insaf 4/419-420).

Is the option for defect exercised immediately or with delay?

The jurists have differed: when the buyer knows of the defect in the merchandise and wants to return it, must he do so immediately, or is he permitted to wait as long as no sign of consent appears? The Hanafis in the school and the Hanbalis in the school hold that the option for defect is deferred: it does not lapse by waiting after knowing of the defect, as long as no sign of consent appears, for it is an option established to avert a realized harm: it is therefore deferred, like the law of retaliation. The Shafi'is and the Hanbalis according to one view hold that the option for defect is immediate: the buyer returns the specified merchandise as soon as he discovers the defect, and the option lapses by waiting without excuse, for the principle in sale is binding force, and this option, established by the Law to avert harm from the property, is immediate, like the option of preemption (shuf'a). This concerns specified merchandise; as for what is owed in liability (dhimma), by sale or salam, immediacy is not required, for the return of a debt does not presuppose the lifting of the contract, contrary to specified merchandise.

The buyer must then hasten to return, according to custom: if he learns of the defect during prayer or a meal, he may delay until he is free, without being negligent; likewise if he relieves a need or is at the baths, or at night: he waits for the morning, custom not counting this as negligence; he is asked neither to run nor to gallop. If he meets the seller, he returns the goods to him; bringing the matter to the judge is even surer; his agent returning suffices, as does returning to the agent. If the seller is absent, he brings the matter to the judge without waiting for his coming or traveling to him; the soundest view is that witnessing the rescission is due from him if he can manage it, in order to inform the seller or the judge, the latter being accessible.

Among the excuses is ignorance of the right of return for defect: if he delayed while knowing of the defect and then said: I delayed because I did not know I had a right to the return, his word is accepted if he is newly converted to Islam or grew up in a remote land where the rulings are unknown: he returns; otherwise no; even if he simply says: I did not know, the option lapses by waiting before his word, this being hidden from the common people. When the return lapses through negligence, the arsh lapses too; if both agree to forgo the return in exchange for part of the price or other wealth, the sound view is that this agreement is not valid and the buyer must return what he took, his right of return not lapsing according to the sound view as long as he believed the settlement valid; if he knew of its invalidity, his right lapses without disagreement.

The Malikis said: silence with excuse never prevents the return: if the buyer discovers the defect, keeps silent and then requests the return, and his silence is explained by a journey or something else, such as illness, imprisonment or fear of an oppressor, the return is granted to him absolutely, whether he waited or not, without an oath. If he kept silent without excuse, a detail applies: if he requests the return after about a day, it is granted to him, with an oath that he did not consent; if he requests it before a day has passed, it is granted without an oath; if he requests it after more than two days, it is refused to him, even with an oath (al-Bahr al-Raiq 6/71; al-Jawhara al-Nayyira 3/57; Hashiyat Ibn Abidin 5/32; Tanqih al-Fatawa al-Hamidiyya 3/389; Sharh Mukhtasar Khalil 5/137; Hashiyat al-'Adawi 2/197; Hashiyat al-Sawi 6/458-459; al-Muhadhdhab 1/283; al-Wasit 3/527-528; Raudat al-Talibin 3/129-131; Mughni al-Muhtaj 2/509; Nihayat al-Muhtaj 4/53-55; al-Najm al-Wahhaj 4/133; al-Dibaq 2/74; Kanz al-Raghibin with the notes of al-Qalyubi and 'Umayra 2/510; Kifayat al-Akhyar 295-296; al-Ta'liqa al-Kubra 3/476-478; al-Mughni 4/109; al-Kafi 2/89; al-Mubdi' 4/97; Kashshaf al-Qina' 3/261; Majmu' al-Fatawa of the Shaykh of Islam 29/394; al-Insaf 4/426).

Is the judge's ruling required for the option for defect?

The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, hold that whoever discovers a defect in the merchandise after possession has the contract rescinded by his word alone: neither the parties' agreement nor the judge's ruling is required, for this is the rescission of a sale for defect, which requires neither the seller's consent nor a judge's ruling, like the rescission by option of condition; it is the lifting of a contract due to the buyer, requiring neither the seller's consent nor his presence, like divorce; and the one entitled to the return for defect depends on it no more than before possession.

The Hanafis distinguish: if the defect is discovered before possession, the buyer may return the goods and rescind by his word: I returned them, without need of the seller's consent or the judge's ruling. If it is after possession, rescission takes place only by the seller's consent or the judge's ruling, for rescission after possession bears upon the contract: now the contract does not conclude by one of the two contractors alone, and therefore is not rescinded by one without the other's consent or the judge's ruling, contrary to rescission before possession, the transaction not being complete then, its completion being possession. If the buyer returns with the seller's consent, there is rescission between them and sale toward third parties; if by judgment, there is rescission toward the two and toward third parties (al-Jawhara al-Nayyira 3/57; Hashiyat Ibn Abidin 4/603; al-Fatawa al-Hindiyya 3/66; al-Ishraf 2/485, no. 805; Raudat al-Talibin 3/129; al-Sharh al-Kabir of Ibn Qudama 4/96; al-Mubdi' 4/97; al-Ta'liqa al-Kubra 3/473-475).

Whoever buys two things and finds a defect in one of them

The jurists are unanimous: whoever buys two things one of which is worthless without the other, such as a pair of sandals, two shoes or two leaves of a door, and finds a defect in one, does not return that one alone: he chooses between returning both or keeping both, for they are two in appearance but one in benefit and meaning: the intended benefit is not obtained from one without the other, and it is the meaning that counts (al-Taj wa-l-Iklil 3/479-481; see al-Mabsut 13/102-103, Badai' al-Sanai' 5/288, al-Hidaya 3/40, Sharh Fath al-Qadir 6/351-353, al-Ikhtiyar 2/22, Tabyin al-Haqa'iq 4/41, al-Bahr al-Raiq 6/68-69, Majma' al-Damanat 517, al-Mudawwana al-Kubra 10/342, al-Istidhkar 6/291-293, Sharh Mukhtasar Khalil 5/147-148, Tahbir al-Mukhtasar 3/645-646, al-Muhadhdhab 1/284, Nihayat al-Matalib 5/325-326, Raudat al-Talibin 3/137-138, al-Majmu' 9/371, al-Kafi 2/87-88, al-Sharh al-Kabir 4/96, al-Mubdi' 4/97, al-Ta'liqa al-Kubra 3/506-512).

If he buys two garments or two slaves, possesses them, and then finds a defect in one, the jurists divide. The Hanafis, the Hanbalis in the school and al-Shafi'i according to one view say: he returns only the defective goods with their share of the price, without returning the other, for he possessed them while they were separate, as if they had been so at the contract; the transaction was consummated by possession, the defect not preventing its completion; the cause of the return being the defect, which exists only in one of them, and the ruling following the cause: do you not see that if one of the two suffers an injury after possession, he has no option over the other? The same applies to a defect found in one, contrary to the sandals: there, if one suffers an injury, he may return the other, the benefit of the one being tied to the other. If it is before possession, the Hanafis say: he may return both or keep both, for the transaction is not complete before possession, and splitting the transaction before its completion is not permitted. The Hanbalis do not distinguish: a single status, before as after possession.

If he buys a commodity measured or weighed and finds a defect in a part after possession: if it is in a single vessel, he may not return a part of it: he returns it all or keeps it all. If it is in several vessels and a defect is found in one: it is like the garments. If one buys two garments, each for ten dirhams, possesses them and then finds a defect in one, and they agree to return it in exchange for an increase of one dirham in the price of the other: the return is permitted and the increase of one dirham is invalid according to Abu Hanifa and Muhammad. The Shafi'is in the school, Zufar among the Hanafis and the Hanbalis according to one view say: he cannot return one and keep the other: either he returns both if the rest is still in his ownership, or he keeps both while taking the arsh, for the transaction is one, the known custom being to combine the good with the bad, and returning the defective goods would harm the seller: he may do so only by returning both, except with the seller's consent, according to the soundest view of the Shafi'is. According to Imam Ahmad, if the buyer knows each one's price, he returns the defective and keeps the sound; if he does not know it and bought them in a single transaction, he does not return and takes the arsh of the defect: this is Abu Bakr's choice.

The Malikis said: if the buyer discovers a defect in a part of appraised and specified merchandise, and the defect is not the motive of the transaction, that is, if its share of the total, after appraising each item and summing them, reaches a half or less, he returns that part with its share of the price: as if he bought ten garments for one hundred, each garment's value being ten, and the defect struck one, two or up to five garments: he keeps the five sound ones for half the price and returns the defective with its share. If it is one garment, he recovers a tenth of the price, that is, ten; two, a fifth, that is, twenty; three, three tenths, that is, thirty; four, two fifths, that is, forty; five, the half, that is, fifty. In sum: each item is appraised separately, the value of the defective is related to the whole, and he recovers the share of the price corresponding to the defective; if the price is merchandise, he recovers in value: the price of the ten garments, if it is merchandise such as a house worth one hundred on the day of the sale, he recovers a tenth of its value, that is, ten, or a fifth, that is, twenty, or three tenths, that is, thirty.

Unless the defective part is the greater one: he does not return a part with its share, but keeps the whole price or returns the whole. The greater share of the price means that its counterpart exceeds the half, even slightly, and the prohibition of keeping the smaller part applies when the whole merchandise is still in place. In conclusion of the Maliki view: returning the defective and recovering its share of the price is permitted if the price is an object or a similar thing; if it is merchandise, he recovers what replaces the defective merchandise from the value of the merchandise constituting the price, because of the harm of association; this if the defective merchandise is not the motive of the transaction: otherwise the buyer's only choice is to return everything or accept everything. Al-Mawwaq said in al-Taj wa-l-Iklil: Ibn Yunus said: the ruling, for whoever buys several things in one transaction and finds a defect in a part after possession, is that he can only return the defective with its share of the price, unless the defective is the motive of the transaction: he then has only the choice of accepting the goods with the whole price, or of returning the whole transaction. Likewise whoever sells different kinds and finds a defect in one: if it is the motive of the transaction, he returns the whole. Ibn al-Mawwaz said: if the defect reaches half the price or less, it is not the motive of the transaction: only the defective is returned with its share; if it exceeds the half, it is the motive of the transaction (al-Taj wa-l-Iklil 3/479-481).

The disagreement of the two parties over the origin of the defect

When the two parties dispute over the defect, whether it was in the merchandise before the contract or occurred with the buyer: two cases present themselves. The first: the question admits only the word of one of the two, such as an extra finger, a sunken scar the like of which cannot occur, or a fresh wound that cannot be old: the word of the one who asserts it prevails without an oath, by agreement of the jurists, for we know the truth of his claim and the falsehood of his opponent: no need to make him swear. If prior occurrence is impossible, such as a fresh wound while the sale and possession date back a year: the seller's word prevails without an oath. The second case: the word of each is possible, such as a tear in a garment or a hole, and neither of the two has proof: the jurists have differed.

The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the soundest version, say: the seller's word prevails, with his oath, if the buyer has no proof that the defect existed with the seller, for the principle is the soundness of the merchandise and the validity of the contract; the buyer claims the rescission of the sale, which the seller denies: the word of the denier prevails. The form of the oath according to the Hanafis: the seller swears by Allah that he is not bound to the return for the defect claimed. The Malikis said: the seller swears that he sold it without defect, or without that specific defect; if the defect is apparent, he swears formally; if it is hidden, he swears upon knowledge; it has been said that he swears formally in both cases; if he refuses, the buyer swears formally; if he refuses, the return is obligatory and he owes him nothing. It has also been said that he swears that he does not know this defect to have occurred in his hands, then returns the goods; if he refuses, the return is obligatory, owing him nothing. Whoever buys merchandise bearing two defects, one old and the other of the kind that occurs and recurs, may return it for the old defect, an oath being upon him that he did not cause the other.

Among the Shafi'is, one considers the seller's answer to the buyer: if the buyer asserts that the merchandise bears a defect prior to possession and wants to return it, and the seller answers: he has no right of return against me for the defect he mentions, or: I am not bound to accept it, he swears that, without being required to address the absence of defect on the day of the sale or on the day of possession, for it may be that he received it defective knowing of it, or that he consented after the sale: were he to speak, he would become a claimant bound to produce proof. His oath is formal: I sold it free of this defect; it does not suffice for him to say: I sold it without knowing of this defect. The Hanbalis said: he swears according to his answer: if he answers: I sold it free of defect, he swears that; if he answers that he does not owe what is claimed, he swears that; his oath is formal, not on the denial of knowledge, all oaths being formal, without denying another's act. The Hanbalis, in the other version, hold that the buyer's word prevails: he swears by Allah that he bought it with this defect, or that this defect did not occur in his hands, and he has the choice of the return or the arsh, for the principle is the absence of possession of the missing part, the entitlement to the counterpart of the price and the binding force of the contract: the word belongs to the one who denies that, as in the disagreement over the possession of the merchandise (Badai' al-Sanai' 5/278-279; Sharh Fath al-Qadir 6/358; Tabyin al-Haqa'iq 4/40; al-Bahr al-Raiq 6/66; Hashiyat Ibn Abidin 7/340-341; al-Fatawa al-Hindiyya 3/86-87; al-Kafi of Ibn Abd al-Barr 1/350; Raudat al-Talibin 3/138-139; al-Mughni 4/121; Sharh al-Zarkashi 2/71; al-Turuq al-Hukmiyya p. 22; al-Mubdi' 4/99-100; al-Insaf 4/331; Kashshaf al-Qina' 3/263; Hashiyat al-Labadi p. 79; al-Raud al-Murbi' 1/565-566).

The fifth type: the option of sight (ru'ya)

The jurists have differed over one who buys a thing without having seen it: is the option established when he sees it, even if it matches the stipulated description? This disagreement rests upon the status of the sale by description or on prior sight, and upon the permissibility of selling absent bodies, questions already treated and taken up here by way of relevance. The Hanafis and Ahmad according to one version said: whoever buys what he has not seen, the sale is valid, the description mentioned or not; he has the option when he sees it: if he wishes he keeps it, if he wishes he returns it, even if it matches the description mentioned; even if he says before seeing it: I consent to it, and then sees it, he may return it, for the option is suspended upon sight and is not established before it.

The Malikis, the Hanbalis in the school and al-Shafi'i according to one of his two views, with a detail to come, say: the sale of unseen merchandise is permitted if the seller described it, without stipulation of immediate payment; without description, it is not permitted; and the sale of the absent is absolutely not permitted, except by description or on prior sight. There is no harm in selling an absent body on description, even if neither the seller nor the buyer has seen it, provided both have described it: if it arrives matching, the sale binds them, and neither of the two has the option of sight unless he stipulated it; without description, the sale is not valid. The Shafi'is in the school and Ahmad according to one version say: the sale of what the contractors or one of them has not seen is not valid (al-Tamhid 13/14-15; al-Istidhkar 6/423, 467; al-Kafi 1/329).

Ibn Rushd (may Allah have mercy on him) said: sales are of two kinds: a sale that is present and visible, over which there is no disagreement; and a sale that is absent or impossible to see: there the scholars have differed. Some say that the sale of the absent is not permitted in any case, described or not: this is the most famous of al-Shafi'i's two views and the one recorded by his companions: the sale of the absent on description is not permitted. Malik and most of the Medinans say that the sale of the absent on description is permitted if its absence is not of the kind that gives cause to fear a change in its description before possession. Abu Hanifa says that the sale of the absent body is permitted without description, and that the buyer then has the option upon seeing it: if he wishes he carries out the sale, if he wishes he returns it.

Likewise, the sale on description includes, in their view, the option of sight, even if the goods arrive matching; according to Malik, if it arrives matching, it binds; according to al-Shafi'i, the sale does not conclude in either case. It is said in the Maliki school that the sale of the absent without description is permitted with the condition of an option, namely the option of sight: this appears in the Mudawwana, and Abd al-Wahhab disapproved of it, saying that it is contrary to our principles. The cause of the disagreement: does the insufficiency of knowledge by description compared to knowledge by the senses constitute an influential ignorance in the sale, a major uncertainty, or a light, excused uncertainty? Al-Shafi'i sees in it a major uncertainty, Malik a light uncertainty. Abu Hanifa, for his part, holds that if the buyer has the option of sight, there is no uncertainty, even without sight; Malik holds that ignorance combined with the absence of description influences the conclusion of the sale.

Malik does not doubt that description stands in place of vision because of the absence of the merchandise, or the hardship of spreading it out, with the risk of deterioration that repeated unfolding would entail: that is why he permitted the sale upon the description register (barnamaj), and did not permit the sale of weapons in their sheath nor of folded cloth in its fold before it is unfolded or the contents of the sheath are seen. Abu Hanifa argued by what is transmitted from Ibn al-Musayyib: the Companions of the Prophet (peace be upon him) wished that Uthman ibn Affan and Abd al-Rahman ibn Awf would trade with one another, so as to know which of the two was the more serious in trade; Abd al-Rahman bought from Uthman ibn Affan a horse in exchange for a plot of land of his elsewhere, for forty thousand or four thousand, and the full account is transmitted. This account contains the sale of the absent in absolute terms, and Abu Hanifa requires the mention of the kind. Another defect also enters the sale on description or on the option of sight because of the absence: does the goods exist at the time of the contract? That is why nearness of absence is required, unless the thing is safe from change, like real estate. That is also why Malik permitted the sale of a thing on prior sight, that is, if it is of such nearness that one is sure it has not changed, the buyer having knowledge of it (Bidayat al-Mujtahid 2/174-175).

The time of establishment of the option of sight

Here is the detail of each school on this question. The Hanafis said: whoever buys what he has not seen, the sale is valid, the description mentioned or not, like one who buys oil in a skin, wheat in a load or cloth in a bale, both agreeing that it exists in the seller's property while the buyer has seen nothing of it: the sale is valid, for the Prophet (peace be upon him) bought what he had not seen, and the buyer has the option upon sight until an indication of consent appears: if he wishes he takes it, if he wishes he returns it. The basis of this is the hadith of Abu Hurayra (may Allah be pleased with him), raised to the Prophet (peace be upon him):

"Whoever buys a thing he has not seen has the option upon seeing it."Narrated by al-Bayhaqi in al-Kubra (10206) and al-Daraqutni in his Sunan (3/4), who said that it contains Umar ibn Ibrahim, known as al-Kurdi, who fabricates hadiths: that is false and it is not narrated by anyone else, save as Ibn Sirin's own words. Ibn al-Qattan said: the one who narrates from al-Kurdi is Dahir ibn Nuh, unknown: perhaps the fault comes from him. See Nasb al-Raya 4/9

This option is also justified because the merchandise is one of the two counterparts: its sight is therefore not required for the conclusion, like the price; and because it leads to no dispute: if he does not consent upon seeing it, he returns it, there being no binding force; the sale being valid, the option is established by the hadith. The option of sight is established at the moment of seeing the merchandise: even if he authorized the sale before the sight, it does not bind him, and his option does not lapse either by explicit waiver before it, if he says after the conclusion of the contract: I consent to it (see the next sheet).

The sale of a thing not seen

The price handed to the seller immediately upon the conclusion of the contract by offer and acceptance does not prevent the binding force, contrary to the option of condition: even if he sells in absolute terms, or with an option in the buyer's favor, or manumits, pledges or gives and delivers before the sight, the sale binds. If he stipulates the option for the seller's benefit, or offers him the sale, it does not bind before the sight but binds after, for it does not carry the right of a third party, but only his own consent: now consent before the sight does not cancel the option. The cause of the distinction between the two options: in the option of sight, the sale was pronounced in absolute terms, without any condition, and the implication is the binding force, the return for this option having been established by the Law; as for the option of condition, it was established by the stipulation of the contractors: it therefore produces its effect within the contract, preventing the present establishment of its ruling.

Whoever sells what he has not seen, for example by inheriting a thing he has not seen before selling it: no option for him according to the soundest view of the school, for the text established the option for the buyer, for fear that the merchandise might change from what he supposes, and to avert any underpricing at his expense: establishing it for the seller would mean fearing that it exceeds his suppositions, which gives no rise to the option: do you not see that if he sells a slave describing him as sick and he turns out sound, the sale binds him with no option? This concerns the sale of an object against a price, the ordinary sale; if he sells an object against an object, that is, in barter (muqayada), and neither of the two has seen what he is to receive, the option is established for each. If they exchange a debt against a debt, the option is established for neither; if he buys an object against a debt, for what the buyer has not seen, the option is established, according to the Prophet's saying (peace be upon him): "Whoever buys a thing he has not seen has the option upon seeing it" (al-Bayhaqi 10206; al-Daraqutni 3/4, with the weakness mentioned above).

The option therefore remains upon the sight, the principle standing: if he finds a change, he has the option, for that sight was not qualified by the attributes: it is as if he had not seen it. If they dispute over the change, the seller's word prevails with his oath, for the change is a new fact, occurring through a defect or through a change of appearance, both accidents; the buyer claims it, the seller denies it and holds to the principle, the cause of the binding force of the contract being the sight of a part of the object of the contract: the word belongs to the denier with his oath, the proof to the one claiming the accident, unless the time is long: the buyer's word then prevails, the outward appearance testifying for him, for things change with the length of time; to whomever the outward appearance testifies, his word prevails. If seller and buyer dispute over the buyer's having seen the goods, the buyer saying: I did not see it at the contract nor after, and the seller: on the contrary you saw it, the buyer's word prevails with his oath, for the seller claims against him the sight, that is, the knowledge of the attributes, a new fact that the buyer denies: his word prevails with the oath.

The sight of a part of the merchandise without the other part

When the merchandise is multiple, if it is a set of differing units, such as garments, mounts, watermelons, quinces, pomegranates and the like, the option does not lapse except by the sight of the whole, for they differ. If it is a commodity measured or weighed, displayed by means of a sample, or a set of near-identical units, such as walnuts and eggs, the sight of a part cancels the option for the whole, for the purpose is the knowledge of the description, which is attained, and usage is established upon it; unless he finds it inferior to the sample: he then has the option. If the merchandise is buried under the earth, such as the carrot, the turnip, the onion, the garlic and the radish after growth, the sale is permitted if its existence under the earth is known, otherwise not. If he sells it and then draws from it a sample that the buyer accepts: if it is sold by measure, like the onion, or by weight, like the garlic and the carrot, the option lapses by necessity and by established usage; if it is sold by number, like the radish, the sight of a part does not cancel the option (Badai' al-Sanai' 5/292-293; al-Jawhara al-Nayyira 3/48-49; al-Lubab 1/366; Kanz al-Daqa'iq 210; Majma' al-Bahrayn 276; Khulasat al-Dala'il 2/41-43; Mukhtasar al-Wiqaya 2/49-51; al-Mabsut 13/69; Sharh Fath al-Qadir 6/335; al-Fatawa al-Hindiyya 3/75; al-Khulasa al-Fiqhiyya on the school of the Hanafi imams 2/31-33).

The Malikis said: the sale upon the sight of a part of a similar good, measured or weighed, such as cotton, flax, wheat and barley, is permitted, that is, the contract is validly concluded by being content with the sight of a part in order to know the description, the sight of a part sufficing, whether the sale is firm or with an option; contrary to appraised goods (muqawwam), where the sight of a part does not suffice, such as a garment among garments: partial sight suffices only if spreading does not destroy it, like muslin; otherwise one contents oneself with the sight of a part. The sale upon the sight of the protective peel (siwan), what preserves the thing such as the peel of the pomegranate, of the walnut and of the almond, is permitted: it is not required to break a part of it in order to see the inside, nor for the watermelon.

The sale upon the description register (barnamaj), that is, the notebook containing the description of the contents of a load of garments for sale, is permitted: one may buy garments bound in a load relying on the descriptions in the notebook, out of necessity, for unloading the load involves hardship, soiling and transport cost if the buyer does not consent; description therefore stood in place of sight: if the contents match it, the sale binds; otherwise the buyer has the option if the difference is a shortfall: if he finds less, it is deducted from the price to that extent; if the shortfall exceeds the half, the sale does not bind him and he returns it; if he finds more, the seller becomes partner in the excess share. If the buyer took possession, then was absent and claims that the contents are inferior or less than what is written in the register: the seller swears that the contents of the load match the writing, denying the buyer's claim: the seller's word prevails with his oath; otherwise, if the buyer swears that he changed nothing and that this is what he bought, and refuses, he is like the seller: the sale binds him.

The sale by description and on prior sight

The sale of merchandise upon its description, coming from someone other than the seller or from the seller himself, is permitted if the merchandise is not in the assembly of the contract, that is, if he is absent from it though present in the town: his presence is not required for the validity of the sale. If he is not absent from it, the sale on description with binding force is not valid: sight is necessary to know the reality, unless opening causes harm or deterioration to the merchandise: the sale on description is then permitted; if the contents match, the sale binds; otherwise the buyer returns it. In sum: the absent thing sold on description with binding force presupposes its absence from the assembly of the contract; as for what is sold on description with an option, or on an option without description, or on prior sight, firm or with an option, absence is not required: it is permitted even if he is present in the assembly, provided opening causes no deterioration.

The sale firm or with an option on prior sight is permitted at the time of the contract if the merchandise does not normally change until then, even if he is present in the assembly of the contract; this varies with the things: fruits, garments, animals, real estate. If the merchandise normally changes, the firm sale is not permitted, but it is with the option by sight, unless what is sold on description or prior sight is very far away: if it is, such as Khurasan in the East in relation to Ifriqiya in the West, with the presumption of change before receiving it as described, the sale is not permitted, except with the buyer's option of sight: it is then permitted absolutely, on description or prior sight, near or far, as long as immediate payment of the price to the seller has not been stipulated; if immediate payment is stipulated, it is not permitted, the operation oscillating between advance and price.

In sum, the sale of the absent comprises twelve forms: it is sold on description, on prior sight, or without either; in each case, firm or with the option by sight; and in each case, very far or not. If it is sold with the option, it is permitted absolutely without immediate payment; if it is sold firm, it is permitted, except for what is sold without either, near or far, through ignorance of the merchandise, what normally changes, or what is very far. As for what is present in the assembly of the contract, its sight is necessary, unless opening involves hardship or deterioration: it is then sold on description or upon the register, as has preceded.

The guarantee of the merchandise sold absent on description or on prior sight falls upon the buyer: it enters his guarantee by the contract if it is real estate received intact by the transaction; otherwise, or if the transaction receives it defective, it falls under the seller's guarantee, except for a condition of the buyer, for real estate, that it be at the seller's charge, or of the seller, for other things, at the buyer's charge: the clause is applied. Taking possession of the absent merchandise, that is, its leaving, falls upon the buyer; immediate payment is permitted in it voluntarily in absolute terms, real estate or not; it is also permitted with a condition if the absent merchandise, sold on description or prior sight, is real estate with binding force, even far away without being extremely so, for its nature is not to change quickly, unless the seller describes it: payment with a condition is then not permitted, but voluntary payment is. If it is not real estate and the thing is near, within a day or two, not more, for its nature is not to change within two days after the sight or the description (al-Tamhid 13/14-15; al-Istidhkar 6/423, 467; al-Kafi 1/329; Bidayat al-Mujtahid 2/174-175; Hashiyat al-Dasuqi with al-Sharh al-Kabir 4/37-39; al-Taj wa-l-Iklil 3/307-312; Mawahib al-Jalil 6/104-112; Tahbir al-Mukhtasar 3/482-488; Sharh Mukhtasar Khalil 5/34; Bulghat al-Salik 3/21).

The Shafi'is said: the sale of the absent body is not permitted if its kind or species is unknown, according to the hadith of Abu Hurayra (may Allah be pleased with him) that the Prophet (peace be upon him) forbade the uncertain sale (gharar): now selling what whose kind or species is unknown involves great uncertainty. If the kind and species are known, as in saying: I sell you the damp cloth in my sleeve, the Zanj slave in my house, or the gray horse in my stable: two views. The first, recent and followed: it is not valid, according to the hadith of Abu Hurayra that the Messenger of Allah (peace be upon him) forbade the uncertain sale, and this sale involves it; it is a sale that is not valid together with ignorance of the description of the merchandise, like the salam. The second, ancient: it is valid and the option is established upon sight, according to what Ibn Abi Mulayka transmitted: Uthman (may Allah be pleased with him) bought from Talha a plot of land in Medina in exchange for a plot he owned in Kufa. Uthman said: I sold you what I had not seen. Talha replied: the look is mine, for I bought unseen, whereas you saw what you bought. They took the dispute to Jubayr ibn Mut'im, who ruled that the sale was permissible and that the look belonged to Talha, the latter having bought unseen and the contract bearing upon a specified object: the sale is therefore permitted despite ignorance of its description, like marriage.

According to this view, the validity of the sale does not require, according to the soundest view, the mention of any attribute, reliance being upon the sight, and the option is established upon sight: the mention of the attributes is not necessary; if he describes it and then finds it otherwise, the option is established; if he finds it matching or superior: two views: the first: no option, for he found it as described, like a sale to which he consented; the second: he has the option, for he is known as a seller with the option of sight: he cannot therefore be without it, and the option extends with the sitting of sight, the contract being completed only by the sight, so that it becomes like a contract at the moment of sight, with an option like that of the sitting. If the buyer saw the merchandise before the contract, then it was away, and he buys it: if it is among things that do not change, like real estate, the sale is permitted, sight aiming at knowledge of the merchandise, knowledge acquired by the prior sight: if he buys it and then finds it in its first description, he keeps it; if he finds it diminished, he returns it, for the contract bound him only upon that description.

If they dispute, the seller saying: it has not changed, and the buyer: it has changed, the buyer's word prevails, for the price is taken from him, and that is not permitted without his consent. If the thing may change or not, remain or not: two views: the first: it is not valid, for its remaining in its description is doubtful; the second, followed: it is valid, the principle being its remaining in its description: the sale is valid by analogy with what does not change.

The ruling on the sale by the blind

If he himself sells while blind, or buys a thing he does not see, it is not valid according to the school, for he has no way to sight: the sale of what one has not seen is completed only by sight, impossible for the blind; nor can he delegate the option, for it is established by the Law and admits no delegation, like the option of the sitting, contrary to the option of condition (al-Umm 3/40; al-Muhadhdhab 1/263-265; Raudat al-Talibin 3/24-26; al-Majmu' 9/273; al-Iqna' 2/282; Mughni al-Muhtaj 2/438-442; Kifayat al-Akhyar 287-288; Nihayat al-Muhtaj with the notes of al-Shubramallisi 3/467-471; al-Dibaq 2/19-21; I'anat al-Talibin 3/20; al-Najm al-Wahhaj 4/42-43).

The sight of a part of the merchandise suffices if it indicates the rest: the surface of a heap of wheat or the like, the surface of the walnuts and the flours, the top of the liquids in their vessels, such as oil, the top of the dates in their bin, the food in its dishes, likewise cotton separated from its seed, even in a load; for the sight of a part dispels the uncertainty of ignorance, the outward appearance giving to believe that the inside is like it: no option if he sees the inside, unless it contradicts it by diminution; contrary to the heap of pomegranates, quinces and watermelons, which do not indicate the rest: the sight of each is required, to the point that seeing one side of a watermelon equals the sale of an absent thing, even if the general rule is that they do not differ, like smooth cloth for which one of the two sides suffices. The sight of the top does not suffice for grapes, peaches and the like, given the possible great difference, contrary to grains. If the thing differs without indicating the rest: if seeing the rest damages it, like the walnut in its lower shell, the sale is permitted, for seeing the inside would damage it and is therefore not taken into account, like the sight of the foundations of the walls.

The uniform sample, that is, with equal parts, like the grains: its sight suffices for the rest of the merchandise, on condition of including it in the sale, without its being required to be mixed beforehand: if he says: I sell you the wheat of this house together with the sample, the sale is valid even without prior mixing; if he sells it without, saying: I sell you such an amount of this kind, it is not valid, for he saw neither the merchandise nor any part of it. Sight is regulated for each thing according to what suits it: for the purchase of houses, one must see the rooms, the roofs, the terraces and the walls, inside and outside, the hammam and the latrines; for the orchard, one must see the irrigation channels; one must also see the road of the house and the watercourse that turns the mill, the purpose varying with it. For mounts, one must see the animal's front, rear and legs, and lift the saddle, the packsaddle and the cover; making the horse run is not required according to the sound view. For folded cloth, one must unfold it: if it is smooth, both of its sides must be seen together; if its two sides do not differ, one suffices. According to the soundest view, the description of a thing one wishes to sell according to the attributes of the salam, and the hearing of its description by way of mass transmission (tawatur), do not stand in place of sight, for the latter conveys what expression cannot; according to the second view, they suffice and the buyer has no option, the known benefit of sight being accessible through description (al-Umm 3/40; al-Muhadhdhab 1/263-265; Raudat al-Talibin 3/24-26; al-Majmu' 9/273; al-Iqna' 2/282; Mughni al-Muhtaj 2/438-442; Kifayat al-Akhyar 287-288; Nihayat al-Muhtaj with the notes of al-Shubramallisi 3/467-471; al-Dibaq 2/19-21; I'anat al-Talibin 3/20; al-Najm al-Wahhaj 4/42-43).

The Hanbalis said: the sale upon sight is valid; sight is sometimes concurrent with the sale, sometimes not. If it is concurrent with the whole, the sale is valid without dispute. If it is concurrent with a part: if it indicates the rest, the sale is valid: the sight of one side of an unprinted cloth suffices, as does the sight of the surface of a heap with equal parts, of grain or of dates, the contents of the vessels of liquid with equal parts, and the contents of loads of a single kind. The sale upon a sample, showing a measure (sa') and then selling the heap as being of its kind, is not valid according to the sound view of the school. What is known by touch, smell or taste equals sight. If one buys what he has not seen and which has not been described to him, or what he saw without knowing what it was, or whose description insufficient for the salam was mentioned, the sale is not valid if the merchandise has not been seen.

Sometimes it is described, sometimes not: if it is not, the sale is not valid according to the sound view of the school; if it is, sometimes the description suffices for the salam, sometimes not: if it does not suffice, the sale is not valid according to the sound view; if it suffices, or if the buyer saw the thing, and they then contract after a time involving apparently no change, the sale is valid according to the soundest version; if they contract after a time that may involve the change or its absence, the sale is not valid. According to the speed of the merchandise's deterioration, like the fruits, or its slowness, like animals, or its great stability, like real estate, each kind is judged according to itself, even if the merchandise is absent in a faraway place where the seller cannot deliver immediately but can have it brought. If the buyer finds what had been seen beforehand unchanged: no option, given the soundness of the merchandise; if he finds it changed, he has rescission with delay, like the option for defect; likewise if he finds a diminution in the description: this option is called the option of difference (khalaf) in the description, that is, the departure of the thing from its way, unless an indication of consent appears from the buyer, such as pricing it: his option then lapses. Riding the sold mount on the way back does not cancel his option, for that does not indicate consent to the change.

When the buyer has forfeited his right of return, he has no arsh according to the soundest view, and he chooses between return and keeping without compensation, unlike the sale with a condition of description, where he has the arsh of the loss. If they dispute over the description, the buyer saying: you mentioned in the description of the slave that she is a virgin, and the seller denying it; or over the change, the buyer saying: the merchandise whose sight had preceded has changed, and the seller answering that it was thus when he saw it: the buyer's word prevails with his oath, for the principle is the innocence of his liability for the price. If the merchandise whose sight had preceded spoils in the time elapsed between the sight and the contract, or changes with certainty, appearance or doubt, the contract is not valid, the condition being missing or doubtful. If the seller says: I sell you this mule for such a price, the buyer accepts, and it turns out to be a horse or a donkey, the sale is not valid: the merchandise is unknown, with no sight that would allow knowing it.

The blind man's sale and his purchase on description are valid for what validates the salam; likewise he may delegate for selling and buying; if he finds what he bought on description diminished by an attribute, he has the option of difference in the description, like the sighted, and even more. The blind man's sale and purchase are valid through what allows him to know what he sells or buys without the sense of sight: smell, touch or taste, knowledge of the reality of the merchandise being thereby acquired; likewise if he saw it before becoming blind, in a time in which the merchandise apparently does not change. If someone buys what he has not seen and which has not been described to him, or buys a thing he saw without knowing what it was, the sale is not valid. The status of the sale of what the seller has not seen is that of the buyer in the preceding details: the sale is not valid if the description does not suffice for the salam and the thing is not known by smell, touch or taste; it is valid if the description suffices or the thing is known through these senses.

The sale on description is of two kinds. The first: the sale of a specified object, whether that object is absent, as in saying: I sell you my Turkish slave, describing his attributes, or present but concealed, like a veiled slave woman or goods in their containers. This first type: the contract is rescinded by returning to the seller, on account of a defect or a diminution of description, without the buyer being able to claim its counterpart, the contract having borne upon the specified object as if it were present; if a counterpart is stipulated in the contract, saying for example: if you lose any of these attributes, I give you its price, the contract is not valid. The contract is also rescinded by the loss of the thing before possession, the locus of the contract having vanished; splitting between the two parties is permitted before the possession of the price or of the merchandise, as for the one present in the assembly; presenting the description in the sale of objects before the contract is permitted, like sight. Likewise, presenting the description of the object of the salam before the contract is not permitted, with no difference between presenting the description in the sale of objects before the contract and presenting it in the salam; the same applies to presenting the description in the sale of what is in liability (dhimma).

If one says to another: I wish to grant you a salaf of a load of wheat, describing it, then after a time, even a long one, says: I have granted you a salaf of a load of wheat, a unit of measure known in Iraq, according to the attributes mentioned, advancing the price before the unloading: it is permitted, the contract valid, the object of the contract being known. The second kind of sale on description is the sale of a described but unspecified thing, described by attributes sufficient for the salam if the salam is valid in it, through the discipline of its attributes, as in saying: I sell you a Turkish slave, detailing the attributes of the salam: this is in the meaning of the salam without being one, for it is immediate; if the seller delivers a slave other than described, the buyer returns him; if the seller delivers the described slave and the buyer returns him for a defect without the contract being rescinded, this is because the contract did not bear upon the specified object, contrary to the first type. This type requires the possession of the merchandise or of the price in the assembly of the contract, being in the meaning of the salam; it also requires not using the word salam or salaf, otherwise it would be a salam, and it would not be valid as immediate (Kashshaf al-Qina' 3/187-190; Manar al-Sabil 2/12; Sharh Muntaha al-Iradat 3/136-138; al-Raud al-Murbi' 1/543-544; al-Insaf 1/735-737; Majmu' al-Fatawa 29/36; al-Ta'liqa al-Kubra 3/7, 34).

What cancels the option after its establishment and makes the sale binding

The Hanafis said: what cancels the option after its establishment and makes the sale binding at the outset is of two kinds: voluntary and necessary. The voluntary is of two kinds: explicit and implicit. The explicit and its equivalent: saying for example: I authorize the sale, I consent to it, I choose it, or what goes in that direction, whether the seller learned of it or not; for the principle in the absolute sale is the binding force, and the impediment comes from a deficiency of consent: if he authorizes and consents, the obstacle vanishes and the sale binds. The implicit: any act of the buyer upon the merchandise after the sight indicating authorization and consent, such as taking possession of it after the sight, possession after the sight indicating consent to the binding force of the sale, possession resembling the contract: possession after the sight is like the contract after the sight, both being indicators of consent.

Likewise if he disposes of it as an owner: cutting a garment or dyeing it red or yellow, perfuming roasted flour with shortening or honey, building, planting or sowing on a plot of land, riding a mount for his need and the like: engaging in these acts indicates authorization and consent to the binding force of the sale and to ownership, for otherwise, the sale having been rescinded, this would be disposition in the property of another, forbidden: it has therefore been made an authorization on his part, to preserve him from sin. Likewise if he offers the sale to the seller, whether he sells or not: in offering, he intended to establish definitive ownership for the buyer, whose binding force is a condition for proving it to others.

If he offers a part for sale, his option lapses according to Abu Yusuf, not according to Muhammad, and the sound view is Abu Yusuf's, the lapse of the option and the binding of the sale through the offer being due to the offer indicating authorization and consent, an indication having less force than explicit authorization; explicit authorization for a part does not suffice and does not cancel the option, for that would be splitting the transaction to the seller's detriment before its completion: the lapse by indication is better than by explicit authorization. Likewise if he gives it away, whether he delivers or not, for what is established by the gift comes back only through judgment or consent: engaging in it indicates the aim of establishing definitive ownership, requiring binding force for the donor; likewise if he pledges it and delivers it, or leases it, each of these acts being a binding contract in itself, establishing a definitive right for another; likewise if he sells it or gives it and delivers it: definitive dispositions establishing binding ownership or right, and engaging in them amounts to authorization and commitment to the contract by indication. If he sells with a condition of option for himself, his option does not lapse according to one version, and lapses according to another, which is the sounder: for the sale with a condition of option is not lesser than the offer of sale, but superior, and the offer of sale cancels the option: the first view is better. Likewise, if he removes a part of the merchandise from his ownership, his option lapses for the rest and the sale binds for it, for returning the rest would be splitting the transaction to the seller's detriment before its completion, the option of sight preventing the completion of the transaction and of consent; likewise if the object of the contract suffers a diminution.

As for the necessary act that cancels the option of sight: it is everything that cancels the option of condition and the option for defect, and makes the sale binding without the buyer's act: the buyer's death, the authorization of one of the two partners of a purchase made together while neither had seen it, according to Abu Hanifa; likewise if a part of the merchandise perishes or diminishes, by heavenly calamity, by a third party's act, or by the seller's act according to Abu Hanifa and Muhammad; or if it grows in the buyer's hands by a separate or attached increase, generated or not, according to the detail already mentioned for the option of condition and the option for defect.

Al-Kasani (may Allah have mercy on him) said: the principle is that everything that cancels the option of condition and the option for defect cancels the option of sight; except that the first two lapse by explicit waiver, whereas the option of sight does not lapse by explicit waiver, neither before nor after the sight. Before it: as we have said, there is no option before the sight, the time of the establishment of the option being the time of the sight: before the sight, there is no option, and a thing cannot be cancelled before its establishment nor the establishment of its cause. After it: the option of sight is not established by the stipulation of the contractors, the pillar of the contract being absolute, by text and by implication, without condition; it is established by the Law because of its ruling: it is therefore established as a right of Allah. As for the option of condition and the option for defect, they are established by the stipulation of the contractors: that of the condition is manifest, recorded in the contract; that of the defect is so as well, for soundness is stipulated in it by implication, and what is established by implication of the text equals what is established by its explicit text: it is therefore established as the slave's right.

What is established as the slave's right admits voluntary waiver, man being able to dispose of his own right by acquiring it and cancelling it; as for what is established as a right of Allah, the slave cannot cancel it voluntarily, for he cannot dispose of the right of another; it admits, however, cancellation by way of necessity, as when he voluntarily disposes of his own right, which entails the lapse of the right of the Law: thus when the buyer authorizes the sale and consents to it after the sight, explicitly or implicitly, through an act indicating consent and authorization: although the option is a right of the Law, the Law established it in consideration of the slave, so that, if the goods suit him, he authorizes them, and if they do not suit him, he returns them; the option being the choice between rescission and authorization, the buyer's authorization and consent constitute a voluntary disposition of his own right, from which the binding force of the contract necessarily follows, and from which the lapse of the option necessarily follows: this lapse comes about by necessity, not by voluntary waiver. A thing may be established by necessity without being established voluntarily: thus the sale agent whose principal dismisses him without his knowledge is not dismissed, whereas he is if the principal sells himself; the same applies here (Badai' al-Sanai' 5/295-297; al-Hidaya of al-Marghinani 3/32-33; Tabyin al-Haqa'iq 4/25; al-Bahr al-Raiq 6/30-31).

What dissolves the contract

The Hanafis said: what dissolves the contract is of two kinds: voluntary and necessary. The voluntary: saying for example: I have rescinded the contract, I have annulled it, I have returned it, and what goes in that direction. The necessary: the disappearance of the merchandise before possession. The conditions for the validity of the rescission: first, that the option exist, for if it lapses, the sale binds, and the binding contract admits no rescission. Second, that the rescission not involve splitting the transaction to the seller's detriment: if he returns a part of the merchandise without the other, it is not valid; likewise if he returns a part and authorizes the sale for another: this is not permitted, before or after possession of the object of the contract, for the option of sight prevents the completion of the transaction, and this would amount to splitting it before its completion, which is invalid. Third, that the seller be informed of the rescission, according to Abu Hanifa and Muhammad; according to Abu Yusuf, it is not a condition. The judge's ruling or the parties' consent is not a condition for the validity of the rescission by option of sight, as for the option of condition: the rescission is valid without judgment or consent, before and after possession, contrary to the option for defect (Badai' al-Sanai' 5/298-299).

The sixth type: the option concerning overmilking for deception (tasriya)

The jurists have differed, as has been mentioned, over the sale of the animal overmilked for deception: he who buys a beast overmilked for deception without knowing it, then learns of it: is it a defect entailing the return with an option? The first view, that of the majority of jurists, namely the Malikis, the Shafi'is, the Hanbalis and Abu Yusuf among the Hanafis: it is a defect, and whoever buys it and finds it overmilked has the choice between the two options after having milked it: if he wishes he keeps it, if he wishes he returns it together with a sa' of dates, according to what Abu Hurayra (may Allah be pleased with him) transmitted from the Prophet (peace be upon him):

"Do not overmilk the camels and the sheep (to deceive the buyer): whoever buys them afterwards has the choice between two options after milking them: if he wishes he keeps them, if he wishes he returns them, together with a sa' of dates." Al-Bukhari said: it is related, from Abu Salih, Mujahid, al-Walid ibn Rabah and Musa ibn Yasar, from Abu Hurayra (may Allah be pleased with him), that the Prophet (peace be upon him) said: "a sa' of dates"; some transmitted from Ibn Sirin: "a sa' of food, and he has the option", repeated three times; others, from Ibn Sirin: "a sa' of dates", without the triple repetition. The dates are the most numerous version.Narrated by Bukhari (2141) and Muslim (1155)

Ibn Mas'ud (may Allah be pleased with him) said: "Whoever buys a sheep overmilked for deception returns it together with a sa' of dates", and the Prophet (peace be upon him) forbade outbidding sales.Narrated by Bukhari (2042)

Abu Hurayra (may Allah be pleased with him) reports that the Messenger of Allah (peace be upon him) said: "Do not meet the caravaners, let none of you sell over the sale of his brother, do not practice the fictitious bidding (najash), let the townsman not sell for the bedouin, do not overmilk the sheep: whoever buys them has the choice between two options after milking them: if he is satisfied, he keeps them; if he dislikes them, he returns them together with a sa' of dates."Narrated by Bukhari (2043)

The Prophet (peace be upon him) thus established the option with return facing overmilking for deception: this shows that it is an influential defect, and that the man is a deceiver, resembling the other defects in deception: he deceives by something that makes the price vary, the return is therefore due, as if one dyed black the white blaze of a beast. The option, however, is established only on condition that the buyer be unaware of the overmilking: if he knows of it, the option is not established according to the Hanbalis, for he bought while knowing of the deception and therefore has no option, as if he bought a beast with a dyed blaze knowing it, or defective goods knowing of their defect: he engaged with insight, with no right of return. The companions of al-Shafi'i said: the option is established according to one view, on the strength of the report, and because the cessation of the milk did not take place and she may remain as she is: this was therefore not counted as consent, like the woman married to an impotent man who seeks rescission.

The second view, that of Abu Hanifa and Muhammad: overmilking is not a defect and there is no option, for it is not a defect: it is agreed that whoever buys a sheep and gets little milk from it does not buy a defect; and deception through what is not a defect does not establish the option, as if one fattened a beast whose belly swells, making the buyer believe she is pregnant: one nevertheless recovers from it the reduction of the defect. They said: the hadith of the milch animal must not give rise to an obligation, for it departs from the principles in several ways: it contradicts the saying of the Prophet (peace be upon him): "Yield follows guarantee", an agreed principle; it contradicts the prohibition of selling food against food on deferred terms, forbidden by consensus; and the principle for deteriorated things is the value or the like, whereas giving a sa' of dates for milk is neither a value nor a like (Badai' al-Sanai' 5/274; al-Bahr al-Raiq 6/51; Hashiyat Ibn Abidin 5/44; Majma' al-Damanat 491; al-Mudawwana 4/300 and following; al-Tamhid 8/204, 217; al-Istidhkar 6/532-537; Sharh Sahih al-Bukhari of Ibn Battal 6/276-280; Bidayat al-Mujtahid 2/132; al-Bayan wa-l-Tahsil 7/350-353; Manh al-Jalil 5/161; al-Umm 3/59-60; al-Hawi al-Kabir 5/237-241; Sharh al-Sunna 8/125-127; Raudat al-Talibin 3/119-124; Sharh Muslim 10/165-167; Tarh al-Tathrib 6/58-59; al-Mughni 4/104; al-Kafi 2/80; Sharh al-Zarkashi 2/61-64; al-Furu' 4/93-99; Kashshaf al-Qina' 3/248-249; 'Aqd al-Jawahir 2/475-477; Fath al-Bari 4/362-363). This question has been set out in full in the chapter on forbidden sales.

This completes the chapter on sales (Takmilat al-Buyu').