Chapter on Disputes Between Buyer and Seller

When both parties agree that the sale itself is valid but later differ about its particulars—such as the amount of the price, its description, the term of payment and its length, the quantity of the goods, and the like—and no evidence is available, each must take an oath. Every party swears to deny what the other alleges and to affirm his own claim. The oath is administered first to the seller; another view gives precedence to the buyer; a third treats them equally, leaving the choice to the judge; and some have said that lots should be drawn. The sounder position is that one composite oath from each party is enough so long as it combines both negation and affirmation, with the negation stated first: “I did not sell it for such-and-such; rather, I sold it for such-and-such.”

After the mutual oaths, the correct opinion is that the contract does not lapse automatically. If the two consent, they may rescind it; otherwise, either party—or the judge—may annul it, although one view restricts dissolution to the judge alone. Once rescinded, the buyer must return the item. If he has already endowed it, emancipated it, resold it, or if it has perished, he must pay its value, which—on the strongest view—is the market value on the day it was lost. Should the item be returned with a defect, he must add an ʿarsh (compensatory allowance for the defect). Any disagreement among their heirs is handled like the original dispute between the parties.

If the seller claims, “I sold it to you for such-and-such,” while the other replies, “Rather, you gave it to me as a gift,” no mutual oath-taking is required. Instead, each swears only to repudiate the other’s claim. When both have sworn, the person asserting that it was a gift must return the property together with any accretions.

If one party asserts that the sale is sound and the other that it is void, the stronger view is to accept the word of the one affirming its validity, conditional on his oath.

If a man buys a slave, later comes back with a defective slave to return it, and the seller says, “That is not the slave I sold you,” the seller is believed on his oath. The same applies—according to the sounder opinion—in a salam (forward-purchase) transaction.