in dirhams, with recourse against them if the house collapsed”—this is incorrect. Rather, if the garment perished before the first transaction, or after the first transaction but before the second—according to the view that the seller bears the risk for absent goods until the purchaser takes possession—the owner of the house must recover from the owner of the garment the rental value of the occupancy up to the time the house collapsed. This is because the owner of the house received nothing, since the loss of the goods falls upon their owner. This is comparable to someone renting a house in exchange for a garment, occupying it for part of the rental period, and then having the garment claimed by its rightful owner: the owner of the house recovers from the owner of the garment the rental value of the occupancy.
If, however, the garment perished only after the first transaction and before the second—according to the view that the purchaser bears the risk for absent goods provided they were intact on the day of the transaction—the tenant must recover from the owner of the house a proportion of the garment’s value corresponding to the remaining period of occupancy. This is because the garment perished at the latter’s risk. The tenant also recovers from him the price he paid for it, since the sale is annulled because the garment perished before that transaction was concluded.
As for the other scholar’s statement, “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,” this is sound and well put. As for his statement, “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,” this applies according to Mālik’s second opinion, adopted by Ibn al-Qāsim: the seller bears the risk for absent goods until possession is taken. Concluding the contract to sell the garment then constitutes taking possession of it, and the first transaction is valid. If the original seller takes possession of it through repurchasing it, the second transaction is also valid. If it is lost before he takes possession, the loss falls upon the first purchaser, who is also the second seller. According to Mālik’s first opinion, however, if it is established that the garment still existed on the day the second transaction was concluded, both the first and second transactions are valid.
Section
Absent goods may be sold only in one of three ways: (first) on the basis of inspection; (second) on the basis of a description, in circumstances where selling them by description is permissible, as explained above; and (third) with the purchaser stipulating that he has the option to accept or reject them upon seeing them, without any stipulation requiring advance payment, whether the goods are nearby or far away. This is