disagreement among Mālik’s followers concerning this general principle, though they differ over its details, as will be explained in the appropriate place in this book, Allah willing. (The second) is a defect of which seller and buyer are equally aware: an obvious defect that cannot be hidden.
Defects that can be concealed fall into three categories: (the first) does not reduce the price at all, either because it is insignificant or because the item sold is inevitably subject to it; (the second) is a concealed defect that slightly reduces the price; and (the third) reduces it substantially. A defect that does not reduce the price, either because it is insignificant or because the item sold is inevitably subject to it, has no legal effect.
A defect that slightly reduces the price may occur either in real property or in merchandise. In real property, it gives no right to return the property, even when it remains available for return. The buyer is entitled only to compensation for the defect, as in the case of a crack in a wall or something similar. In merchandise, however, the apparent meaning of the reports in al-Mudawwana and elsewhere is that a minor defect gives the same right of return as a substantial one. Another opinion treats merchandise like real property: there is no right of return, only an entitlement to compensation for the defect.
The jurist Ibn Rizq, may Allah have mercy on him, interpreted the apparent wording of the reports in this latter sense wherever they occurred, saying that there was no distinction in this respect between real property and merchandise. His interpretation is supported by Ziyād’s report from Mālik, may Allah have mercy on him, concerning someone who buys a piece of cloth and discovers a small tear that would be removed when the cloth is cut, or a similar defect: he may not return it on that account, but the price is reduced by the amount attributable to the defect. The same applies to all things.
This report appears in the comprehensive collection of Mālik’s opinions, may Allah have mercy on him, compiled for al-Hakam. A similar statement appears in al-Mukhtasar al-kabīr. It states: “An item may be returned only for a substantial defect that reduces its price and whose consequences are feared. No account is taken in this of the defects for which merchants accept returns.” Consider this carefully.
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I know of no threshold established by the earlier scholars of our school for a minor defect that gives no right of return in landed property, or in houses and merchandise according to one of the two opinions. I have, however, seen that Ibn ‘Attāb—may Allah Most High have mercy on him—was asked about a defect that reduces the price of a house by one quarter. He replied: “That is substantial and gives a right of return.” Ibn al-Qattān said: “If the value of the defect is two mithqāls, it is minor, and the buyer may recover