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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 36Section

Translation · EN

the corruption of the sold object, the sale is not valid; because it is something whose sale is not valid, and even if it has not changed, its sale is not valid; because it is unknown. The same applies if it is apparent that it has changed. As for if it potentially may have changed or not, and it is not apparent that it has changed, its sale is valid; because the original state is integrity, and no apparent evidence contradicts it, so its sale is valid, just as if the absence was for a short time, and this is the apparent position of the Shafi'i school.

Section: The option (khiyar) is established in a sale due to being deceived (ghabn) in certain instances: first, meeting the riders (talaqqi al-rukban), if he meets them, buys from them, sells to them, and deceives them. Second, deceptive bidding (najsh). These two are discussed in their respective places. Third, the unsuspecting party (mustarsil), if he is deceived by an amount that deviates from the norm, he has the option between rescinding or executing the contract. This is the position of Malik, while Ibn Abi Musa said, and it has been said: The sale is binding upon him and he has no right to rescind it. This is the school of Abu Hanifa and al-Shafi'i; because a decrease in the price of a commodity while it remains in sound condition does not prevent the binding nature of the contract, similar to a sale involving someone who is not an unsuspecting party, and like minor deception. We argue that it is a deception resulting from his ignorance of the sold object, so the option is established, like the deception in meeting the riders. As for someone who is not an unsuspecting party, he entered into the contract with clear insight regarding the deception, so he is like one who is aware of a defect. Similarly, if he rushed and was ignorant of what he would have known had he been patient, he has no option, because it was based on his own negligence and failure. The unsuspecting party is one who is ignorant of the value of the commodity and is not skilled in trading. Ahmad said: The unsuspecting party is one who does not know how to bargain. In another wording: one who does not bargain. It is as if he surrendered to the seller, so he took what he gave him without bargaining or knowledge of his being deceived. As for the one who is aware of that, or one who would have known had he paused, if he hastened at the time and was deceived, they have no option. There is no specific definition for deception (ghabn) in the texts from Ahmad, but Abu Bakr in "al-Tanbih" and Ibn Abi Musa in "al-Irshad" limited it to one-third. This is the view of Malik; because one-third is a large amount.

Notes

(26) In M: "mawadi'ihima" (their respective places). (27) Omitted from: the original.

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