the defect that developed while it was in his possession. This is contrary to the position of al-Shāfiʿī and Abū Hanīfa, who hold that he may not return it together with compensation for the diminution caused by the new defect; he may only retain it and recover compensation for the original defect. The evidence supporting our position is the statement of the Messenger of Allah (peace and blessings be upon him):

“Whoever buys a sheep whose milk has been allowed to accumulate in its udder has the choice, after milking it, of whichever course he prefers: he may keep it, or return it together with a sāʿ of dates.”

The relevance of this hadith is that, although the buyer had consumed part of the purchased item—namely, the milk accumulated in the udder—the Prophet (peace be upon him) gave him the choice between returning it and compensating for the milk he had consumed, with the sāʿ of dates, or retaining it. This explicitly addresses the point in dispute. Reasoning and analogy also support this: there are two defects, one arising while the item was with the seller and the other while it was with the buyer. Neither party is willing to accept the defect that arose while it was with the other, even with compensation for its value. Since the two rights conflict, the buyer’s right deserves precedence, because he neither deceived the other party nor dealt wrongly with him. The seller, however, either deceived the buyer or erred by selling him a defective item as sound without verifying its condition.

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The procedure in this case, if the buyer wishes to retain the item or recover compensation for the defect, is to ask: “What was its value on the day of sale, free of both the concealed defect and the defect that arose while it was with the buyer?” If the answer is one hundred, the next question is: “What was its value that day with the concealed defect, but free of the defect that arose while it was with the buyer?” If the answer is eighty, the buyer recovers one-fifth of the price from the seller, whether this is less or more than his due. This is because the seller delivered only four-fifths of what he sold him, yet took the price of the whole. He must therefore return one-fifth of the price, since he received it without right and without providing anything in exchange.

If the buyer wishes to return the item together with compensation for the diminution caused by the defect that arose while it was with him, the further question is: “What was its value that day with both the concealed defect and the defect that arose while it was with him?” If the answer is sixty, while its sound value that day was one hundred and its value with the concealed defect was eighty, as stated above, then the buyer owes one-fifth of the price. Alternatively, one may say: one-quarter of the price remaining after one-fifth has been deducted, since the seller concealed a defect amounting to one-fifth of the item sold and thus took one-fifth of the price without right. The two calculations give the same result. This is because that portion is what was lost while the item was with the buyer, so he remains liable for its corresponding share of