or occurred while in the possession of the buyer? This does not lack two scenarios: The first is that it does not admit of anything other than the word of one of them, such as an extra finger, a healed head wound that cannot possibly have occurred later, or a fresh wound that cannot possibly have been old. [In such cases, the statement is that of the one who claims this, without an oath, because we know his truthfulness and the falsehood of his opponent, so there is no need to require an oath from him]. The second is that it admits of the word of each of them, such as a rip in a garment, darning, and the like. Regarding this, there are two narrations: The first is that the statement is that of the buyer, so he swears by God that he bought it while it already had this defect, or that it did not occur while in his possession, and he shall have the option; because the principle is the non-receipt of the lost portion, the entitlement to what corresponds to it from the price, and the binding nature of the contract regarding it, so the statement is that of the one denying this, as if they differed regarding the receipt of the sold item. The second is that the statement is that of the seller along with his oath, so he swears according to his response; if he responds that "I sold it free of the defect," he swears to that, and if he responds that he is not entitled to what he claims regarding the return, he swears to that. His oath is upon certitude, not upon the denial of knowledge; for all oaths are upon certitude, not upon the denial of another's action. This is the position of Abu Hanifa and al-Shafi'i; because the principle is the soundness of the sold item and the validity of the contract, and because the buyer is claiming against him an entitlement to rescind the sale, while he denies it, and the statement is the statement of the denier.

Section: If a deputy sells, and then the buyer discovers a defect that was in it, he may return it to the principal; because the sold item is returned due to a defect upon the one for whom it was sold. If the defect is of the type that could have occurred later, and the deputy acknowledges it while the principal denies it, Abu al-Khattab said: His acknowledgement of the defect is accepted against his principal; because it is a matter by which the return is merited, so the acknowledgement of the deputy is accepted against his principal, like the option of condition. The companions of Abu Hanifa and al-Shafi'i said: The acknowledgement of the deputy regarding that is not accepted. This is the more correct view; because it is an acknowledgement against another, so it is not accepted, like a stranger. Thus, if the buyer returns it to the deputy, the deputy does not possess the right to return it to the principal; because he returned it based on his acknowledgement, which is not accepted against someone else. The Qadi mentioned this. If the deputy denies it and an oath is directed at him, and he refuses, and it is returned to him due to his refusal, does he have the right to return it to the principal? There are two views: One is that he does not have the right to return it; because that proceeds in the same manner as his acknowledgement. The second is that he has the right to return it; because it returns to him without his choice, which is similar to a case where evidence is established against him.

Section: If one buys a slave girl on the condition that she is a virgin, then the buyer says: "She is a thayyib (non-virgin)." She shall be shown to trustworthy women, and the statement of a trustworthy woman is accepted. If the buyer has intercourse with her and says: "I did not find her to be a virgin," two views are derived therefrom, based on the two narrations in the case where they differ regarding a defect that occurred later.

Section: If the buyer returns the merchandise due to a defect in it, and the seller denies that it is his merchandise, the statement is that of the seller along with his oath. Abu Thawr and the scholars of opinion (ashab al-ra'y) said this. Al-Awza'i said something similar, for he said regarding one who exchanged dirhams for dinars, then returned with a dirham, and the money changer said: "This is not my dirham," the money changer swears: "By God, I paid this to you," and he is absolved; because the seller is denying that this is his merchandise and is denying the entitlement to rescission, and the statement is that of the denier. As for if he comes to return the merchandise due to an option, and the seller denies that it is his merchandise, Ibn al-Mundhir related from Ahmad that the statement is that of the buyer. This is the view of al-Thawri, Ishaq, and the scholars of opinion; because they both agreed upon the entitlement to rescind the contract, and the return due to a defect is the opposite of that.

747 - Issue: He said: (If he buys something whose edible part is inside it, and he breaks it and finds it spoiled, if the broken item has no value, such as chicken eggs, he recovers the price from the seller. If the broken item has value, such as a coconut, he has the option of returning it and taking back the price—and he is liable for the compensation for the breaking—or he takes the difference between its sound and defective state.)

The entirety of this is that if he buys what he cannot examine for defects except by breaking it, such as melons, pomegranates, walnuts, and eggs, and he breaks it and its defect is revealed, there are two narrations: The first is that he does not recover anything from the seller, and this is the school of Malik; because there is neither deception nor negligence from the seller, due to his lack of knowledge of its defect and the fact that it is impossible for him to ascertain it except by breaking it, so it is treated as...