the amount by which the defective value falls short of the sound value; and if the purchaser declines to rescind and prefers to keep the item, the seller must refund from the price the difference between its sound value and its defective value at the time of sale.

[Chapter Two: The Sale with a Disclaimer]

Chapter Two
On the Sale with a Disclaimer (bayʿ al-barāʾah)

The scholars disagreed over the permissibility of this type of sale.

Its basic form is that the seller stipulates that the buyer must assume responsibility for every defect he may discover in the article, without exception.

Abū Ḥanīfah said: A sale accompanied by a general disclaimer from all defects is valid—whether the seller knew of the defect or not, named it or did not name it, saw it or did not see it. The same opinion was held by Abū Thawr.

Al-Shāfiʿī, in his most widely transmitted view (and this is the position championed by his followers), maintained: The seller is discharged only from a defect that he actually shows to the buyer. Al-Thawrī agreed with this.

As for Mālik, the most famous report from him is that the disclaimer is permissible for whatever defects the seller knows, and only in the case of slaves—except for a disclaimer of pregnancy in select female slaves of great beauty, which he does not allow because of the grave uncertainty involved, though he permits it for ordinary ones.

A second narration from Mālik allows the practice with respect to slaves and livestock, while a third aligns with al-Shāfiʿī’s view. It is also reported from him that a sale with a disclaimer is valid only when conducted by the ruler, and some have said: in the ruler’s sales and in sales of inherited property, even when no disclaimer is expressly stipulated.

The proof advanced by those who deem an unrestricted disclaimer valid is that pursuing a defect is one of the buyer’s rights vis-à-vis the seller; when the buyer waives that right, its basis and every related right fall away.

Those who do not permit it without restriction argue that, regarding defects unknown to the seller, the matter entails gharar (undue uncertainty), while with defects he does know it amounts to inequity and deception; hence Mālik required that the seller be ignorant of the defect.

In brief, Mālik’s chief evidence is what he narrates in the Muwaṭṭaʾ: ʿAbd Allāh ibn ʿUmar sold a slave of his for eight hundred dirhams, selling him with a disclaimer. The purchaser said to ʿAbd Allāh ibn ʿUmar, “The slave has an ailment you did not specify,” and they brought the case before ʿUthmān. The man said, “He sold me a slave with an ailment he did not mention,” while ʿAbd Allāh replied, “I sold him with a disclaimer.” ʿUthmān ruled that ʿAbd Allāh must swear that he had sold the slave knowing no ailment in him; ʿAbd Allāh refused to swear and therefore took the slave back. It is also related that Zayd ibn Thābit considered a sale with a disclaimer permissible. Mālik restricted the ruling to slaves because their defects are, for the most part, concealed.

To summarize: the option of returning goods on account of a defect is an established right of the buyer. Because the relevant circumstances differ widely according to the nature of the merchandise, when both parties concur in their ignorance of a defect, the very basis of the sale is invalid if they agree to remain unaware of a characteristic that affects the price. For that reason Ibn al-Qāsim reports in the Mudawwanah that Mālik’s final view was to disallow the sale with a disclaimer, except in cases in which the ruler has granted leniency and in the settlement of debts specifically.

Al-Mughīrah, one of Mālik’s companions, held that the disclaimer is valid only in respect of defects whose impact does not exceed one-third of the value of the item sold.

In general, a disclaimer becomes binding—according to those who make it conditional (i.e., when it is expressly stipulated)—with the sole exception, in Mālik’s view, of sales conducted by the ruler and of inherited property.

Accordingly, the overall discussion on the sale with a disclaimer revolves around its permissibility and the condition