thereupon, the judge said: He also has the right of return, in order to avert the harm befalling the buyer; and harm must be averted, whether it was intended or not, so it resembles a defect. It is possible that the option is not established by the redness of her face due to shyness or exhaustion, because that is a possibility, so attributing it to her original nature is a matter of greed, thus it resembles the blackening of the slave's fingertips.
Section: If one feeds the sheep so that its flanks are filled, and the buyer thinks it is pregnant, or blackens the fingertips of a slave or his garment, misleading others into thinking he is a scribe or blacksmith, or if the sheep was naturally large-uddered, so he thought it was abundant in milk, he has no option. This is because this does not necessarily point to the condition he assumed; for the fullness of the belly may be due to eating, drinking, or other things, and the blackness of the slave's fingertips may be due to dipping them in an inkwell, or because he is beginning to learn to write, or is a servant to a scribe; thus, attributing it to him being a scribe is a matter of greed, so it does not establish an option.
Section: If he desires to keep the deceived item and take the compensation (arsh), he has no right to compensation because the Prophet (peace and blessings of Allah be upon him) did not grant him compensation for the musarrat (an animal whose milk has been withheld in the udder). He only gave him an option between two things, saying: "If he wishes, he may keep it; and if he wishes, he may return it along with a sa' of dates." Moreover, the deceived item is not itself a defect, so he does not deserve compensation for it. If returning it is impossible due to it being destroyed, he is liable for the price, because he is unable to return something for which there is no compensation, so it resembles an item that was not deceived. If it became defective in his possession before he knew of the deception, he has the right to return it, return the compensation for the defect in his possession, and take back the price. If he wishes, he may keep it, and he receives nothing. If he learned of the deception and then disposed of the sold item, his right to return it is void, just as if he had disposed of a defective sold item. If he delays the return without disposing of it, its ruling is the ruling on delaying the return of a defective item, according to what we shall mention, if Allah Almighty wills.
741 - Issue; He said: (And if he buys a previously married (thayyib) slave woman, and has intercourse with her, or enjoys her usufruct, then discovers a defect, he is given the choice between returning her and taking back the full price—because the gain is balanced by the liability, and intercourse is like service—or taking the difference in value between the sound state and the defective state.)
There are five sections in this issue:
One of them is that whoever knows of a defect in his commodity is not permitted to sell it until he clarifies it to the buyer. If he does not clarify it, he is a sinner and disobedient. Ahmad explicitly stated this, because Hakim ibn Hizam reported from the Prophet (peace and blessings of Allah be upon him) that he said: "The two parties to a sale have the option as long as they have not separated. If they are truthful and clarify, they are blessed in their sale; and if they lie and conceal, the blessing of their sale is erased." (Agreed upon). And he (peace and blessings of Allah be upon him) said: "The Muslim is the brother of the Muslim. It is not lawful for a Muslim to sell to his brother a sale unless he clarifies it to him." And he said: "Whoever sells a defect without clarifying it shall remain in the wrath of Allah, and the angels shall continue to curse him." Both were reported by Ibn Majah. Al-Tirmidhi reported that the Prophet (peace and blessings of Allah be upon him) said: "Whoever deceives us is not of us." He said: This is a hasan sahih hadith, and the practice among the scholars is based upon it; they disliked deception and said: It is forbidden. If he sells it without clarifying it, the sale is valid according to the opinion of most scholars, among them Malik, Abu Hanifa, and al-Shafi'i. It is related from Abu Bakr Abd al-Aziz that the sale is void because it is prohibited, and prohibition necessitates corruption. Our argument is that the Prophet (peace and blessings of Allah be upon him) forbade the musarrat and validated the sale alongside it. It has been reported from Abu Bakr that it was said to him: What do you say regarding the musarrat? He did not mention an answer.
The second section is that whenever he learns of a defect in the sold item, while he did not know of it previously, he has the option between keeping it and rescinding the contract, regardless of whether the seller knew of the defect and concealed it or did not know. We know of no disagreement among the scholars regarding this. The Prophet's (peace and blessings of Allah be upon him) establishment of the option due to the musarrat is an indication of its establishment due to a defect. Furthermore, the absolute contract necessitates safety from defects, as evidenced by what was reported from the Prophet (peace and blessings of Allah be upon him) that he bought a slave and wrote: "This is what Muhammad ibn Abdullah bought from al-Adda' ibn Khalid; he bought from him a slave, or a slave woman, with no disease and no harm; the sale of the Muslim to the Muslim." Thus, it is established.
