The apparent meaning of the author’s words is that disbelief is not considered a defect in a slave. Thus, if a person buys a slave and discovers that he is a disbeliever, this is not a defect and he may not return him. The basis for this is that the author mentioned Islam only as something established by stipulation; this indicates that if the purchaser finds the slave to be a disbeliever, he has no option of rescission. They explained this by saying that the original state of slaves is disbelief, because slaves originally consisted of captives taken from the disbelievers. Therefore, the presumption concerning them is disbelief unless it becomes clear that they embraced Islam.
His statement, “and that the female slave be a virgin”: if it is stipulated that the female slave be a virgin, this is a valid condition, because virginity is a sought-after attribute, and thus the condition is valid. But if he does not stipulate it and finds her to be previously married, he has no option of rescission, because the author has treated a female slave’s virginity as a matter requiring stipulation. If someone were to say, “The presumption is virginity,” we would reply: this presumption is countered by an apparent indication—namely, that she has been sexually used—for if she is in her master’s possession, the usual case is that he has intercourse with her. This is one of the cases in which the presumption and the apparent indication conflict, and the apparent indication is given precedence, for the presumption is not always preferred. The apparent indication may be stronger than the presumption, in which case it is acted upon.
Issue: What is the ruling on these conditions when they are valid but are not found to be fulfilled?
The ruling is that the one who stipulated the condition has the right to rescind the contract if his condition is not fulfilled, because he has missed something intended. But if he says, “I do not wish to rescind the contract; rather, I want compensation for the missing attribute”—that is, the difference between its value with this attribute and its value without it—“and I do not wish to return the item sold, for I still desire it.” For example, he may stipulate that the slave be able to write, only to find that he cannot write, though he is a good worker and of good character. He then says, “I do not…”