is where a man sells an item with a defect, then buys it back from the purchaser for more than the price at which he sold it to him. If he concealed the defect, he has no recourse against the purchaser; if he did not, he may recover from him the amount paid above the original price. (The fourth) is that, where someone conceals a defect in an item and it is returned to him because of that defect, the broker is not obliged to refund his fee, unlike the case where the seller did not conceal it. (The fifth) concerns someone who sells an item with a disclaimer of liability, where such a sale is permissible: he is exempt from liability for defects of which he was unaware, but not for those he knew of and concealed.
Section
As for the fourth situation, where the purchased item itself is no longer available, there are two possibilities: (the first) is that it has passed out of the buyerโs ownership for consideration; (the second) is that it has passed out of his ownership without consideration. The first possibilityโits passing out of his ownership for consideration, through a sale or a gift made in expectation of recompenseโlikewise has two forms: (the first) is that he sells it back to its seller; (the second) is that he sells it to someone else.
If he sells it back to its seller at the same price, he owes nothing, since he has effectively returned it to him. If he sells it back for less, he may recover the balance of the original price from him, so that it is as though he had returned it to him.
If, however, it is not established that the defect existed while the item was with the first seller, and it could have arisen while it was with the first buyer, who is the second seller, the first seller must swear by Allah that the defect was not present when he sold it. If the defect is apparent, his oath must be categorical; if it is hidden, he swears according to his knowledge. The first buyer, who is the second seller, then has no claim against him, while he himself may return the item to that buyer.
If the defect could also have arisen while the item was with the first seller after he bought it back from the first buyer, the second seller, who is the first buyer, must swear, if the defect is hidden, that to his knowledge it did not arise while the item was with him. The first seller, who is the second buyer, may then not return it to him, and the sale remains binding upon him at the second price, since he has been released from paying the difference between the two prices by his oath, or because the defect did not arise while the item was with him.
If he sells it back to him for more than the price at which he bought it from him, and the first seller had known of the defect and concealed it, the sale is binding upon the first seller, and he may not return it to the first buyer, who is the second seller. If the seller had not known of the defect, he may return it to the first buyer, who is the second seller. The second seller, who is the first buyer, may then return it to the first seller, who is the second buyer. If each returns it to the other, their claims for repayment of the price are offset against one another, and reimbursement is claimed