his own report from Mālik as well. Muhammad ibn al-Mawwāz, expressing his own view, distinguished between cases in which the defect manifests itself while the item is with the buyer and those in which it does not. He required the seller to swear in the former case, but not in the latter. What he intended was to require an oath merely on the strength of the buyer’s allegation.

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There is disagreement over whether returning an item because of a defect constitutes rescission of the sale or a new sale. In the Book of Ascertainment of Freedom from Pregnancy in al-Mudawwana, Ibn al-Qāsim treated it as a new sale, since he required the buyer to comply with the custodial waiting period for ascertaining freedom from pregnancy. This position is also reported from Mālik. In the Book of Defects, however, Ibn al-Qāsim takes the contrary position concerning a man who emancipated his slave, whose creditors then had that emancipation set aside, and whose slave was subsequently sold by the ruler to discharge his debt. If it is then established that the slave had a defect while with the seller and that the seller had known of it, the sale is rescinded, and the slave becomes free by virtue of the seller’s original act of emancipation, provided that the seller has funds from which the creditors’ debts can be paid.

Ashhab said in the Book of Ascertainment of Freedom from Pregnancy that the return constitutes rescission of the sale. This is also reported from Mālik—may Allah have mercy on him—in al-‘Utbiyya. Yet Ashhab takes the contrary position in the aforementioned case in the Book of Defects, holding that the slave does not become free. He thus treats the slave as returning to the seller under newly acquired ownership, rather than under his original ownership.

Section

There is disagreement over what causes liability for an item returned because of a defect to pass to the seller. One view holds that, once the buyer has witnesses attest to the defect and to his refusal to accept it, he is discharged from liability for the item, unless so much time passes that he is considered to have accepted it. This is Asbagh’s position. Another view holds that liability remains with the buyer until the defect is established before the ruler. A third holds that liability remains with the buyer even after the defect has been established before the ruler, until its return to the seller is ordered or the slave’s owner agrees to take his slave back.

Section

If the item returned because of a defect yields income and requires expenditure for its upkeep, the income belongs to the buyer and the expenses fall upon him. He has no claim against the seller for those expenses, nor is he required to return the income, since he bore the liability.