801 - Issue; he said: "If the commodity has partially perished, or has increased in a way that its increase is inseparable, or some of its price has been paid, the seller regarding it is on the same footing as the [other] creditors."

The totality of this is that the seller is only entitled to reclaim the commodity under five conditions. One of them is that the commodity remains as it is specifically, without any of it perishing. If a part of it perishes—such as some of the limbs of a slave, or the loss of his eye, or some of the cloth perishes, or part of a house collapses, or he bought fruit-bearing trees whose fruit has not yet appeared and the fruit perishes, or the like—the seller does not have the right of reclamation, and he is on the same footing as the creditors. Ishaq held this view. Malik, Al-Awza'i, Al-Shafi'i, and Al-'Anbari said: He has the right to reclaim the remainder and ranks with the creditors for the share of the perished portion, because it is an item in which he is entitled to reclaim the whole, so he is entitled to reclaim a part of it, like one who possesses an option or like a father regarding what he has gifted to his son. Our evidence is the statement of the Prophet (peace be upon him): "Whoever finds his commodity specifically with a person who has become insolvent, he is more entitled to it." (2) He conditioned finding it specifically, and he did not find it specifically. Furthermore, when he finds it specifically, he achieves through the reclamation a resolution of the dispute and the cessation of the transaction between them, unlike [the case] when he finds only a part of it. There is no difference between him being satisfied with the existing [part] for the entire price or taking it for a share of the price, because the condition for reclamation has been missed. If the sold items are two distinct units, such as two slaves or two garments, and one of them perishes, or part of one of them, then there are two narrations regarding the permissibility of reclaiming the remainder of them. One is that he does not reclaim it. Abu Talib narrated this from Ahmad, who said: He does not reclaim the remainder of the item and is on the same footing as the creditors, because he did not find the sold item specifically, so it resembles the case where it was a single item. Also, because part of the sold item is perished, he does not have the right of reclamation, just as if the hand of a slave were cut off. Al-Hasan ibn Thawab (3) narrated from Ahmad that if it was a single garment and some of it perished, he is on the same footing as the creditors; but if it was in bales and some of them perished, he takes them at their value if he finds them specifically, because the sound portion of the sold item was found by the seller specifically, so it enters into the generality of his statement (peace be upon him): "Whoever finds his commodity specifically with a person who has become insolvent, he is more entitled to it." And because it is a sold item that he found specifically, the seller is entitled to reclaim it, just as if it were the entire sold item.