“Ibn al-Qāsim stipulated that the garment must be known to have been in his possession at the time of the second transaction only because, if it was in his possession and the house collapsed during the rental period, a corresponding proportion of the garment would have to be returned. If the garment was not in his possession at the time of the second transaction, it would be as though the lease had been concluded for dirhams, and if the house collapsed, recourse would be against those dirhams. Since it is not known whether recourse would be against the dirhams or the garment, the transaction must not be permitted until this is known, so that both parties enter into a clearly defined arrangement.”

Another said: “He stipulated ‘if it is known to be in his possession’ only because it is not known whether what he sold him actually existed. The sale contract is valid when concluded; the matter is then examined. If it is established that the garment was in his possession, the validity of the first transaction is established; otherwise, it is not.”

His words, “a corresponding proportion of the garment would have to be returned,” mean that if the house collapses after the tenant has occupied it for half the rental period, he has recourse against the other party for half the garment’s value. If the period is shorter, the amount is smaller; if longer, it is larger, calculated proportionately. This is because the garment given in exchange for occupancy has become unavailable for restitution through its sale back to him. It is therefore treated just as it would be if it had been sold to someone else or had become unavailable for restitution in some other way. This is correct.

Abū Ishāq al-Tūnisī held that he has recourse only against the price he paid, in proportion to the remaining period of occupancy. His reasoning was that a claim had arisen to a proportion of the garment he sold corresponding to the portion of the house that had collapsed, so the sale must be rescinded with respect to that proportion of the garment.

This reasoning is unsound. The garment is the payment for occupancy, so recourse must be against it, and it is treated like property subject to a rightful claim, only if it remains available for restitution. Selling it precludes restitution, even if it was sold back to the same person, since there is no difference in this respect between selling it to him and selling it to someone else. Do you not see that, if someone purchases a slave under a defective sale and then sells him back to his original seller under a valid sale, this precludes restitution? The latter sale therefore stands, and the defective sale is regularized on the basis of the slave’s value. Yet Abū Ishāq al-Tūnisī’s reasoning would require the valid sale in this case to be rescinded and not to preclude restitution, because the property had returned to the seller’s possession; the defective sale would then also be annulled. This is far-fetched.

As for his words—meaning those of one of the Qarawī teachers—“If the garment was not in his possession at the time of the second transaction, it is as though the rent were solely