namely, to return the article sold and take back the price, or to keep it and have no further claim.

As for real estate, Mālik distinguishes between a slight defect and a serious one. He says: If the defect is minor, rescission is not required; instead, the purchaser is entitled to the diminution in value—the compensation known as the arsh. If the defect is considerable, rescission is obligatory. This is the settled, well-known position recorded in the books of his companions, whereas the Baghdadi Mālikīs do not draw this distinction.

With respect to movable merchandise, the prevalent view in the school is that it is not treated like immovables in this ruling. Others have maintained that it is, and this was the preference of the jurist Abū Bakr ibn Rizq, my grandfather’s teacher—may God have mercy on them both—who used to say, “In this matter there is no difference between immovables and movables.” Anyone who differentiates between major and minor defects in immovables, he argued, is logically bound to do so in movables as well. The underlying principle is that any defect that reduces the value gives rise to a right of rescission, and this is the view adopted by the jurists of the provincial centers. For that reason, as far as I can tell, the Baghdadis placed little weight on the rare distinction that appears with regard to immovables.

In the case of livestock, there is no disagreement: no distinction is made between a small defect and a large one.

Section

Since we have stated that the buyer may either return the goods and take back the price or keep them with no compensation, if the two parties agree that the buyer will keep the goods while the seller pays him the diminution in value, the majority of jurists in the provinces allow this, with the sole exception of Ibn Surayj among the Shāfiʿīs. He held that they are not permitted to do so, on the grounds that the option concerns property and therefore cannot be waived for consideration, just as the option of pre-emption cannot.

Qāḍī ʿAbd al-Wahhāb replied: This is a mistake, for the right belongs to the purchaser: he may exercise it—by returning the article and recovering the price—or he may relinquish it in exchange for compensation. The example of pre-emption that Ibn Surayj cited actually supports our view, for in our doctrine the pre-emptor may abandon his right for compensation, and there is no disagreement on that.

Two well-known subsidiary questions of partial rescission arise in this chapter.

First: If the buyer purchases various kinds of goods in a single bargain and finds one of them defective, does he rescind with respect to all of them or only the defective item?

Some scholars say he has no choice but to return them all or keep them all; this is the view of Abū Thawr and al-Awzāʿī—unless the parties have stipulated the price of each type, in which case, by consensus, he returns only the defective item. The dispute concerns the situation where no separate prices were named.

Others hold that he returns the defective item together with its proportionate share of the total price, the share being determined by appraisal. Among those who adopt this view are Sufyān al-Thawrī and others; both opinions are reported from al-Shāfiʿī.

Mālik offers a nuanced approach: one looks at the defective item. If it was the principal object of the transaction and the purpose of the purchase, the buyer rescinds the whole sale; if not, he returns the defective item at its assessed value.

Abū Ḥanīfah introduces another distinction: if the defect is discovered before taking possession, the buyer must return the entire lot; if it is discovered after possession, he returns only the defective item together with its share of the price.

In this matter