742 - Issue: He said: "And if she was a virgin, and he wished to return her, he must pay what she has decreased in value."

This refers to a virgin slave girl; if the buyer had intercourse with her, then discovered a defect, and returned her, he must return with her the compensation for the [resulting] decrease in value. There are two narrations from Ahmad regarding the permissibility of returning her. The first: He may not return her, but must instead take the compensation for the defect. This is also the view of Ibn Sirin, al-Zuhri, al-Thawri, al-Shafi'i, Abu Hanifah, and Ishaq. Ibn Abi Musa said: "This is the correct view according to Ahmad." The second narration: He may return her, provided he also returns something [as compensation for the intercourse]. This is the view of Shurayh, Sa'id ibn al-Musayyab, al-Nakha'i, al-Sha'bi, Malik, Ibn Abi Layla, and Abu Thawr. What is obligatory is to return the amount by which intercourse decreased her value; if her value as a virgin was ten and as a non-virgin eight, he returns two dinars, because by rescinding the contract, she becomes guaranteed by him at her value, unlike the compensation for a defect that the buyer takes. This is the view of Malik and Abu Thawr. Shurayh and al-Nakha'i said: "He returns one-tenth of her price." Sa'id ibn al-Musayyab said: "He returns ten dinars." What we have stated is more appropriate, if Allah the Almighty wills. Those who forbade her return argued that intercourse decreased her substance and value, so he is not entitled to return her, just as [if] one bought a slave and castrated him, decreasing his value. Our counter-argument is that this is a defect that occurred in the presence of one of the contracting parties, but not for the purpose of testing [the item]; thus, it establishes the option [of rescission], just like a defect occurring in the presence of the seller before possession.

Section: For any sold item that was defective, and then another defect occurred to it in the possession of the buyer before he knew of the first, there are two narrations from Ahmad, may Allah have mercy on him. The first is that he has no right to return it, and he is entitled to the compensation for the original defect. This is the view of al-Thawri, Ibn Shubruma, al-Shafi'i, and the jurists of Iraq (Ashab al-Ra'y). It is also narrated from Ibn Sirin, al-Zuhri, and al-Sha'bi, because the right to return is established to remove harm,