The third section: If the buyer sells a portion of a defective item, then discovers a defect, he is entitled to compensation (arsh) for what remains in his possession of the sold item. Regarding compensation for what he sold, the same disagreement applies as we mentioned concerning the case where he sells the entire item. If he wishes to return the remainder in exchange for its portion of the price, then what al-Khiraqi mentioned here is that he has the right to do so. Ahmad explicitly stated this. The correct view is that if the sold item is a single entity, or two entities which would be diminished by separation, such as the two leaves of a door or a pair of boots, he does not have the right to return it; due to the harm this causes the seller through a decrease in value, the harm of shared ownership, or the prevention of complete utilization, such as the permissibility of intercourse and employment. Shurayh, al-Sha'bi, al-Shafi'i, Abu Thawr, and the proponents of ra'y held this view. Our companions have mentioned in other than this place, regarding cases where the sold item consists of two entities diminished by separation, that it is not permissible to return one without the other due to the harm involved. In the case where one purchases a defective item and it becomes further defective while in his possession, he does not have the right to return it unless he returns the compensation for the defect that occurred while in his possession. Therefore, it is not permissible for him to return it in our stated issue while it is defective due to the defect of shared ownership or the decrease in value without anything, unless al-Khiraqi intended the case where the seller practiced deception regarding the defect, for according to him, that does not absolve the buyer of the liability for the defect that occurred while in his possession, as we have mentioned in the past. If the sold item consists of two entities that are not diminished by separation, and he sells one of them, then finds a defect in the other, or learns that both were defective, does he have the right to return the one remaining in his ownership? This is derived from the two narrations regarding the splitting of a transaction. The Qadi said: The issue is based on the splitting of the transaction, whether the sold item is a single entity or two entities. The detail we have mentioned is more appropriate.

Section: If he purchases two entities and finds a defect in one of them, and they are of the type that is not diminished by separation, or of the type that separation is not permitted between them, such as a child with its mother, he has no recourse except to return both, or to keep both and take the compensation. If they are not like that, there are two narrations concerning them. The first is that he has no recourse except to return both or to take the compensation while keeping them. This is the apparent view of al-Shafi'i and the view of Abu Hanifah before taking possession, because returning one is a partial splitting of the transaction by the buyer, which he is not entitled to do, just as if they were of the type diminished by separation. The second [narration] is that he has the right to return the defective one and keep the sound one. This is the view of al-Harith al-'Ukli, al-Awza'i, and Ishaq. It is the view of Abu Hanifah after taking possession, because he returns the defective one in a manner that entails no harm to the seller, so it is permissible, just as if he returned both. It differs from that which is diminished by separation, as there is harm in that. If one of the two sold items is destroyed, or becomes defective, or he finds a defect in the other or in both, and he wishes to return it, the ruling follows the detail and disagreement we have mentioned. If they differ on the value of the destroyed item, the statement is that of the buyer along with his oath, because he is a denier of what the seller claims regarding the increase of its value; he is in the position of one liable, for when the value of a destroyed item increases, the amount he is liable for increases, so he is in the position of one who borrows or usurps. As for if both sold items are remaining and defective, and in neither of them is there anything preventing its return, and he wishes to return one of them without the other, the Qadi said: He has no right to do so, and did not mention anything regarding it other than the prohibition of returning one of them. The logic (qiyas) is that it is like the one preceding it, since if keeping one of them were an impediment to return when both are defective, it would have been an impediment if it were sound.

Section: If two people purchase something and find it to be defective, or they stipulate the option (khiyar) and one of them expresses approval, there are two narrations from Ahmad, which Abu Bakr and Ibn Abi Musa have related. The first is that whoever did not express approval has the right to rescind (faskh). Ibn Abi Layla, al-Shafi'i, Abu Yusuf, and Muhammad held this view, and it is one of the two narrations from Malik. The other [narration] is that it is not permissible for him to return it. This is the view of Abu Hanifah and Abu Thawr; because the sold item left his ownership in a single batch, not fragmented. Thus, when he returns it while it is held in common, he returns it diminished, resembling the case where it became defective while in his possession. The reasoning for the first [view] is that he returned all that he owned by virtue of the contract.