a bar to return, and his only recourse is to recover the allowance for the defect. If, however, the contract entails its subsequent return to his ownership—as with a pledge, a lease, or a grant of a slave’s services—our jurists disagree. Ibn al-Qāsim said: “Once it returns to his ownership, he may return it; the contract he entered into concerning it does not constitute a bar to return.” Ashhab said: “If its term is short, he may return it; if it is long, it constitutes a bar to return.” Asbagh said concerning a lease that it does not constitute a bar to return: he may return the item without the lease being annulled, because he concluded it when he was entitled to do so. Similarly, if he arranged a marriage for a male slave and then discovered a defect in him, he could return him on account of the defect without the marriage being dissolved. Consider, then, whether he must compensate for any resulting depreciation, and compare his case with that of someone who buys a piece of cloth, cuts it, and then discovers a defect in it.
Section
The seller must therefore accept a return on account of defects predating the contract, subject to the distinctions already explained, whether or not he knew of them, provided the defect is ascertainable—unless he sells with a disclaimer of liability for defects. If he sells with such a disclaimer in a case where it is valid, he is absolved of liability for defects of which he was unaware, according to the position of Mālik—may Allah Most High have mercy on him—but not for defects that he knew of and fraudulently concealed. Defects that arise in the item after the sale contract, however, give no right of recourse, unless a defect arises in a slave during the three-day warranty period, or insanity, leprosy, or leukoderma arises during the one-year warranty period.
Section
Defects are thus divided into three categories: a pre-existing defect established to have been present while the item was with the seller, whether by evidence establishing this, the seller’s admission, or direct observation; a defect established to have arisen while the item was with the buyer, whether by evidence establishing this, the buyer’s admission that it arose while in his possession, or direct observation; and a defect of uncertain origin, which may have been present while the item was with the seller or may have arisen while it was with the buyer.
Section
As for a pre-existing defect, a return must be accepted if the item remains returnable, and the allowance for the defect must be paid if return is barred, according to