715 - Issue: He said: "And if they trade them for something other than the specific items [themselves], and one of them finds a defect in what he purchased, he is entitled to a replacement, provided the defect is not an extraneous one from a different kind, such as clarity in gold or darkness in silver."

This means they entered into a Sarf (currency exchange) contract involving the dhimmah (liability), such as if one says: "I sell you an Egyptian dinar for ten dirhams." The other says: "I accept." The sale is valid, whether or not the dirhams and dinars are present with them, provided they take possession before separating, by way of borrowing or otherwise. This is the opinion of Abu Hanifah and al-Shafi'i. It is narrated from Malik that the exchange is not permissible unless both specific items are present. Another report from him states that it is not permissible until one of the two items appears and is specified. A similar view is held by Zufar, because the Prophet (peace be upon him) said: "Do not sell a deferred [amount] of it for a prompt one." Furthermore, if one of the two compensations is not specified, it would be a sale of a debt for a debt, which is not permissible. Our evidence is that they took possession in the session, so it is valid, just as it would be if they were present. The Hadith is intended to mean that a prompt [payment] should not be sold for a deferred one, or a possessed item for an unpossessed one, evidenced by the fact that if he specifies one of the two, it is valid even if the other is absent. Taking possession in the session acts in the place of taking possession at the time of the contract; do you not see his statement: "A specific item for a specific item," "Hand to hand"? Taking possession occurs in the session, and so does specification. Once this is established, both must be specified by taking possession in the session. Whenever they take possession and one of them finds a defect in what he received before parting, he has the right to demand a replacement, whether the defect is of its own kind or a different kind, because the contract was based on an absolute [item] that is free of defects, so he has the right to demand what the contract was made upon, like that which is sold via Salam (forward sale). If he accepts it with its defect, and the defect is of its own kind, it is permissible, just as if he were to accept the item of a Salam contract in a defective state. If he chooses to take the arsh (compensation for the defect), and the two compensations are of the same kind, it is not permissible, because it leads to excess in what is required to be equal. If they are of two different kinds, it is permissible. As for if they took possession and parted, then he finds a defect that is of its own kind, he is entitled to replace it according to one of the two narrations, which was chosen by al-Khallal and al-Khiraqi. This is also narrated from al-Hasan and Qatadah. This is the opinion of Abu Yusuf and Muhammad, and it is one of the two opinions of al-Shafi'i, because what is permissible to replace before parting is permissible after it, like the Salam item. The second narration is that he does not have that right, which is the opinion of Abu Bakr, the school of Abu Hanifah, and the second opinion of al-Shafi'i, because he is taking possession after parting, and that is not permissible in Sarf. Those who follow the first narration say: Taking possession of the first [item] made the contract valid, and taking possession of the second serves as an indicator for the first. It is stipulated that he takes the replacement during the session of the return; if they part without taking possession, the contract is void. If he finds part of it to be poor quality and returns it, then according to the first narration, he is entitled to a replacement, and according to the second, it is void regarding the returned portion. As for whether it is valid regarding what he did not return, there are two views based on the splitting of the transaction (tafriq al-safqah), and there is no difference between whether the sold item is of one kind or two kinds. Malik said: If he finds a counterfeit dirham and is satisfied with it, it is permissible; but if he returns it, the Sarf is invalidated for one dinar. If he returns eleven dirhams, the Sarf is invalidated for two dinars, and every time he adds to one dinar, the Sarf is invalidated for another dinar. Our evidence is that what has no defect was not returned, so the Sarf is not invalidated regarding what corresponds to it, just like the rest of the compensation. If the one who found the defect chooses to annul [the contract], then according to our view that he has a right to a replacement, he cannot annul it if he is provided a replacement, because he is able to obtain his right without defects. According to the other narration, he may annul it or keep the whole, because he was unable to reach what he contracted for while maintaining the contract. If he chooses to take the arsh of the defect after parting, he is not entitled to that, because it is compensation he receives after parting from the Sarf, except according to the other narration.

Section: It is a condition of Sarf in the dhimmah (liability) that both compensations be known, either by a description that distinguishes them, or that the town has a known or prevailing currency, so that the absolute reference points to it. If he says: "I sell you an Egyptian dinar for twenty dirhams of the currency of ten to a dinar," it is not valid.