his owner, or the ruling of a judge; because his ownership of the price has been completed, so it cannot be dissolved except with his consent. Our argument is that it is a dissolution of a contract to which he is entitled, so it does not require the consent or presence of its owner, like divorce; because he is entitled to return it due to the defect, so it does not require the consent of its owner, just as in the case before taking possession.

744- Issue: He said: "If the buyer sells some of it, then discovers a defect, he is given the choice between returning his ownership of it for its proportional value of the price, or taking the compensation (arsh) for the defect proportional to his ownership of it."

The discussion on this issue falls into three sections:

Of them is that if he buys a defective item and then sells it, his right to return it ceases because his ownership of it has ceased. If it returns to him and he wishes to return it due to the original defect, we examine it: if he sold it while knowing of the defect, or if something was found from him indicating his acceptance of it, then he has no right to return it, because his action constitutes acceptance of the defect. If he did not know of the defect, he may return it to his seller. This is the view of al-Shafi'i. Abu Hanifah said: He has no right to return it, unless the buyer rescinded it by a judge's ruling, because his right to return it ceased upon his selling it, so it resembles the case where he knew of its defect. Our argument is that it is possible for him to rectify his grievance by returning it, so he possesses that right, just as if the second [buyer] rescinded it by a judge's ruling, or as if his ownership of it had not ceased. We do not concede that his right has ceased; rather, it was prevented due to his inability to return it. So, when it returns to him, the obstacle is removed, and the permissibility of the return becomes apparent, just as when the return is prevented due to the absence of the seller or for any other reason. It makes no difference whether it returns to the first buyer due to the original defect, by mutual rescission (iqala), by gift, by a second purchase, or by inheritance, according to the apparent statement of the Qadi. The companions of al-Shafi'i said: If he regained it by something other than rescission due to the original defect, there are two views. One of them is that he has no right to return it, because he rectified his grievance by selling it, and it was not removed by his rescission. Our argument is that the cause for the entitlement to return it is present, and it was only prevented by the impossibility due to the cessation of his ownership; so when the obstacle is removed, it becomes necessary that the return be permissible for him due to the defect. Based on this, if the buyer sells it to his first seller and then finds in it a defect that was present at the time of the first contract, he may return it to the second seller, and then the second may return it. The benefit of the return here is the difference between the two prices, for the second price may be higher.