714 - Issue: He said: "If one buys gold with silver, as specific items (bi-ayn), and then one of them finds a defect in what he purchased, he has the option to return it or accept it, provided it is at the exchange rate of its day, and the defect is one that does not originate (1) from a different category."

The meaning of his saying "as specific items (bi-ayn)" is that he says: "I sell you this dinar for these dirhams," pointing to both of them while they are present. And "not as specific items (bighayr ayn)" is that he concludes the contract on a described object not pointed to, saying: "I sell you a Misri dinar for ten Nasiri dirhams." If possession takes place in the session, and it is possible for one of the two compensations to be specific while the other is not, all of this is permissible. The well-known view in the school is that currencies become specific through specification in contracts, so ownership is established in their very substances. Based on this, if they trade gold for silver with specification for both, then they take possession, and one of them finds a defect in what he took, the situation does not escape two categories: The first is that the defect is a forgery from a different category than the sold item, such as finding that the dirhams are lead or copper, or contain some of that, or that the dinar is smooth (rubbed clean), in which case the exchange (sarf) is void. Ahmad stated this, and it is the view of al-Shafi'i. Abu Bakr mentioned three narrations regarding it: First, the sale is void. Second, the sale is valid, because the sale occurred on its specific substance, and the buyer has the option between keeping it, returning it, and taking a replacement. Third, the contract is binding upon him, and he has no right to return it nor to demand a replacement. Our argument is that he sold him something other than what he named, so it is not valid, just as if he said: "I sell you this mule," and it turned out to be a donkey, or "this silk garment," and he found it to be linen. As for the saying that the sold item is binding upon him, it is incorrect. If he purchases a defective item without knowing its defect, it is not binding upon him without receiving arsh (indemnity for the defect) (2), like all other sold items. Furthermore, Abu Bakr says regarding the one who deceives regarding a defect: the sale is not valid, despite the existence of the very substance named in the sale. Therefore, here, with the difference (3) in substance, it is even more appropriate. The second category is that the defect is from its own category, such as the silver being black, or rough and cracking upon being minted, or its stamp being different from the Sultan's stamp; in this case, the contract is valid, and the buyer is given the choice between keeping it or annulling the contract and returning it, but he has no right to a replacement because the contract occurred on its specific substance, and if he were to take another, he would be taking what he did not buy. But if we say that currency does not become specific by specification in the contract, then he has the right to take a replacement, and the contract does not become void; because what he took is not what was contracted upon, so it resembles a salam (forward sale) when he takes possession of it and finds a defect in it. If the defect is in part of it, he has the right to return the whole or keep it. And is he allowed to return the defective part and keep the sound part? There are two views, based on the division of the transaction (tafriq al-safqa). The ruling regarding when the two compensations are of the same category is like the ruling for when they are of two categories, as we have mentioned. However, it is derived from the view of those who forbid the sale of two types for one type of that same category, that if he finds part of the compensation to be defective, the contract becomes void for the whole, because that which corresponds to the defective part is less than that which corresponds to the sound part, so it becomes like the issue of the mudd of Ajwah (dates). The view of al-Shafi'i is the same as what we have mentioned in this chapter, exactly.