Section

If the seller has received part of the price and finds his goods intact, he may choose either to return what he has received and reclaim his goods, or to leave them and share proportionately with the other creditors for the remainder of his claim. This differs from al-Shāfiʿī’s view that he may not return what he has received; rather, if he wishes to reclaim the goods, he is entitled only to a share corresponding to the unpaid portion of their price. It also differs from the view of the literalists, who hold that if he has received any part of the price, he stands on an equal footing with the other creditors. They rely on the implication of the Prophet’s words, peace and blessings be upon him, in the hadith:

“and the seller has received none of its price, he has a preferential right to it.”

They say that this indicates that, if he has received any part of the price, he has no preferential right to the goods and stands on an equal footing with the other creditors. Their conclusion is not correct, however, for the wording admits an inference other than theirs.

Section

The same applies to all transactions for consideration that resemble a sale, such as a gift made in return for recompense, or the return of goods because of a defect, according to those who regard such a return as a new sale. That is, if the buyer returns defective goods and the seller becomes insolvent before refunding the price, and the buyer finds the goods intact in the insolvent seller’s possession, he has a preferential right to them over the other creditors, should he wish to reclaim them, according to the view that returning defective goods constitutes a new sale.

According to the view that it constitutes rescission of the sale, however, he has no recourse to the goods. Rather, he has a preferential right to the very money he paid, if he finds it, upon either death or insolvency, because the sale has been rescinded and his property itself must be returned. If he does not find that very money, he stands on an equal footing with the other creditors for his claim under both views.

Under the view that returning defective goods constitutes rescission of the sale, there are two opinions as to whether the buyer has a preferential right to retain the goods until he recovers the price, if the seller becomes insolvent before the buyer returns them to him. Under the view that it constitutes a new sale, however, he unquestionably has that preferential right.

There is likewise disagreement concerning someone who purchases goods through an invalid sale, where the seller becomes insolvent before the buyer returns them to him: does the buyer have a preferential right to retain them until he recovers