Ibn ʿAbd al-Ḥakam said:
The buyer may reclaim the amount by which the defect has diminished the item’s value.
Ashhab said:
He may recover the lesser of two sums: the diminution in value or the loss he incurred when he resold the article—this holds when he sold it for less than he had paid. Consequently, he has no claim if he resold it for the same price or for more; the same view is reported from ʿUthmān al-Battī.
The rationale given by Ibn al-Qāsim, al-Shāfiʿī, and Abū Ḥanīfah is that once the buyer has resold the article he has accepted another consideration without reckoning the defect’s effect on that consideration, namely the resale price. Therefore, if the second purchaser discovers a defect and seeks redress, the first buyer turns—without dispute—against the original seller.
The rationale of the second opinion is the analogy drawn between sale and manumission.
As for the reasoning of ʿUthmān and Ashhab: had the article remained with the buyer, he would have possessed only two options—either keep it whole or return it whole. Since he has sold it and taken its price, he is entitled only to the amount of his actual loss, unless that loss exceeds the assessed diminution in value.
Mālik said:
If the buyer gives the article away as a gift or in charity, he may still recover the diminution in value. Abū Ḥanīfah held that he may not, because a gift or charitable donation is a voluntary relinquishment of ownership without consideration, undertaken for spiritual reward; his willingness to forgo his right concerning the defect is therefore even clearer.
Mālik, however, assimilated a gift to manumission. Strict analogy would have barred recovery in all such cases once the article had passed beyond the buyer’s reach and could no longer be returned; for their unanimous agreement that, while the item remains in the buyer’s possession, he is entitled only to rescind or to retain it shows that a defect does not warrant any reduction in price, but only dissolution of the sale.
With respect to contracts that allow the item to come back to the buyer—such as pledge (rahn) or hire (ijārah)—Mālik’s companions disagreed. Ibn al-Qāsim said:
Such contracts do not prevent rescission for defect once the item returns to the buyer.
Ashhab said:
If the period during which the item was out of his hands was not excessively long, he may rescind on account of the defect. Ibn al-Qāsim’s view is the stronger. A gift conditioned on counter-compensation, in Mālik’s view, is like a sale in that it constitutes a definitive transfer. These, then, are the circumstances in which new contracts intervene with respect to the purchased item and the rulings that govern each.
Section
On subsequent diminution
Should diminution befall the purchased item, it must concern either its value, its body, or its very life.
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A reduction in value caused by market fluctuation has, by consensus, no effect on the right of rescission for defect.
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As for a bodily diminution that arises after purchase:
• If it is slight and has no impact on value, it likewise has no bearing on rescission; its ruling is identical to the case where no change occurred. This is the explicit position of Mālik and others.
• If the bodily diminution is serious enough to affect value, the jurists hold three opinions:
a. The buyer may recover only the diminution in value attributable to the defect and nothing more if the seller refuses to take the item back. This is al-Shāfiʿī’s later opinion and that of Abū Ḥanīfah.
b. Al-Thawrī said: The buyer has no option but to return the item, adding the amount corresponding to the defect that arose in his possession; this is also al-Shāfiʿī’s earlier view.