the distinctions we have mentioned. As for a newly arisen defect, the buyer has no claim against the seller on its account. Where its origin is uncertain, the seller is required only to swear an oath. One view holds that this must be a categorical oath. This is Ibn Nāfi‘’s position in al-Madaniyya and Yahyā’s report from Ibn al-Qāsim in al-‘Utbiyya. The argument for this is that, if the defect were established to have existed while the item was with the seller, he would have to accept its return even if he had been unaware of it. Since he must accept its return even without having known of the defect, an oath limited to his knowledge should not absolve him of liability. This conclusion, however, does not necessarily follow: he must accept its return despite his ignorance only when the defect is established to have existed while the item was with him, whereas that has not been established in the case under discussion.
Ashhab said that the seller’s oath is limited to his knowledge, whether the defect is apparent or hidden. Ibn al-Qāsim distinguished between the two: for an apparent defect, he swears categorically; for a hidden defect, he swears only as to his knowledge. If he refuses to swear, the oath devolves upon the buyer in either case, who swears that, to his knowledge, the defect did not arise while the item was with him. This is Ibn al-Qāsim’s position in ‘Īsā’s transmission in al-‘Utbiyya. It is also reported from him in al-Madaniyya that the oath devolves upon the buyer in the same form as it had been required of the seller. Ibn Habīb adopted this position in al-Wādiha. Ibn Nāfi‘ said that the buyer swears categorically, consistently with his position concerning the seller’s oath; this is also Yahyā’s report from Ibn al-Qāsim in al-‘Utbiyya. According to Ashhab’s position, the buyer’s oath is limited to his knowledge in both cases.
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If the buyer refuses to swear, al-Madaniyya contains a report transmitted by ‘Īsā from Ibn al-Qāsim—may Allah Most High have mercy on him—that the sale becomes binding upon him. This implies that, after refusing, he may not subsequently offer to take the oath. The same work also records Ibn Nāfi‘’s statement: “If he refuses to swear, the item may not be returned unless he swears.” This implies that he may take the oath after having refused it.
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This concerns defects that are physically apparent. As for those that are not apparent, such as running away, illicit sexual intercourse, theft, and similar conduct, if the buyer claims that the slave already had such a defect, Ibn al-Qāsim said that the seller must swear an oath, citing his own report from Mālik as evidence. Ashhab said that no oath is required of him, and cited in support