There are thus four opinions on the matter.
The argument of those who forbid partial rescission is that the portion returned must now be valued at a price on which buyer and seller never agreed, and likewise the portion that remains with the buyer is retained at a price on which they never agreed. It is quite possible, they say, that had the commodity been divided from the outset the buyer would not have purchased that part for the valuation now assigned to it.
The argument of those who insist that the defective portion—and it alone—must be returned is that necessity leaves no alternative. Judicial appraisal and estimation therefore stand in the place of mutual consent, by analogy with property that has perished, for in such cases only an assessed monetary value can be claimed.
Mālik’s distinction between what is the principal object of the bargain and what is not is an instance of istiḥsān (equitable preference). He reasoned that when the defective item was not sought for its own sake, no great harm arises if its assessed price fails to match the precise wishes of either buyer or seller. When, however, the defective item is the intended purchase, or constitutes most of it, the harm becomes considerable. Within his school a further debate arose: should one assess the defect’s impact on the value of the entire lot, or only on the value of the item actually affected?
Abū Ḥanīfah’s distinction between delivery and non-delivery rests on his position that taking possession is a condition for the completion of the sale. Until the goods have been received, liability remains with the seller, and the rule governing dispossession due to a third-party claim (istihqāq) is, in this connection, identical to the rule for rescission on account of defect.
The second issue
Jurists also differed about two men who buy a single article in one transaction, find it defective, and one wishes to rescind while the other refuses. Al-Shāfiʿī maintained that the one who wishes to rescind may do so, and this is also Ibn al-Qāsim’s report from Mālik. Others held that he may not.
Those who allow rescission liken the case to two separate sales, for two contracting parties are involved. Those who disallow it liken it to a single sale in which the buyer seeks to return only part of the goods because of a defect.
Chapter Four
On the various kinds of changes that may occur while the purchased item is in the buyer’s possession and the rulings that apply
If the article changes while in the buyer’s hands and he learns of the defect only after the change, the ruling varies among the jurists of the provincial centers according to the nature of that change.
If the change comes about through death, ruin, or manumission, the jurists regard the item as lost and allow the buyer to recover the diminution in value from the seller. ʿAṭāʾ ibn Abī Rabāḥ, however, said that in cases of death or manumission nothing may be recovered. The same ruling, in their view, applies to one who buys a female slave and fathers a child by her, to a slave declared mudabbar, and—by analogy—to a slave engaged in a contract of manumission (kitābah).
If the alteration results from the buyer’s selling the article, the jurists disagree. Abū Ḥanīfah and al-Shāfiʿī say that once he has sold it he may claim nothing, and al-Layth concurs. Mālik, by contrast, offers further details:
• The buyer may have resold it to his original seller or to someone else.
• He may have sold it for the same price, for less, or for more.
If he sells it back to the original seller for the same price, he has no claim for the defect. If he sells it for more, the matter must be examined. Should the first seller have been guilty of deceit, the first buyer turns to the second buyer for the price, the second buyer turns to the first seller, both sales are annulled, and the commodity returns to the ownership of the original seller.
If he sells it to someone other than the original seller, Ibn al-Qāsim says that he has no right to recover the diminution in value—the same opinion held by Abū Ḥanīfah and al-Shāfiʿī.