Their proof is what Mālik narrated from Ibn Shihāb, from Abū Bakr ibn ʿAbd al-Raḥmān, that the Messenger of Allah—peace and blessings be upon him—said:

“Whenever a man sells some goods and the purchaser becomes bankrupt while the seller has not yet received any of the price, and the seller finds the goods intact, he has the strongest claim to them. If the purchaser dies, however, the owner of the goods is merely one of the creditors.”

This is a ḥadīth: although Mālik transmitted it in mursal form, ʿAbd al-Razzaq supplied it with a continuous chain. It has also come through the isnād of al-Zuhrī, from Abū Hurayrah, with additional clarification:

“If he has already taken any part of the price, he is simply on a par with the other creditors.”

Abū ʿUbayd mentioned and documented this report in his work on jurisprudence.

Al-Shāfiʿī’s argument is that the ruling for the whole of the goods and for any part of them is identical. There is no disagreement that if the buyer has caused some of the merchandise to perish, the seller enjoys the stronger right to whatever portion of his goods he can still recover—except according to ʿAtāʾ, who held that once any part has been lost the seller must stand on equal footing with the creditors.

Al-Shāfiʿī and Mālik also differed with regard to death: does it carry the same ruling as bankruptcy or not? Mālik maintained that in the case of death the seller is like any other creditor, unlike the case of bankruptcy; al-Shāfiʿī replied that the ruling is one and the same in both situations.

Mālik’s chief support is the report he narrated from Ibn Shihāb, from Abū Bakr, which is a decisive text on the matter. By way of reasoning he added that death and bankruptcy differ in legal liability: the bankrupt may later acquire wealth, allowing his creditors to pursue what remains of their claims, whereas such a possibility is inconceivable once a debtor has died.

Al-Shāfiʿī’s principal evidence is what Ibn Abī Dhʼīb related, with his chain, from Abū Hurayrah: the Messenger of Allah—peace and blessings be upon him—said, “If a man dies or goes bankrupt, the owner of the goods has the strongest claim to them,” thus equating death and bankruptcy. Al-Shāfiʿī argued that Ibn Abī Dhʼīb’s ḥadīth is preferable to that of Ibn Shihāb, because the latter is mursal whereas this one is musnad.

Analyzed substantively, the property concerned is wealth over which its owner has no disposal until his liabilities are settled, making it resemble the estate of an insolvent debtor. In this respect, Mālik’s analogy is stronger than that of al-Shāfiʿī, and preference should be given to his ḥadīth over that of Ibn Abī Dhʼīb because it is backed by qiyās al-maʿnā (substantive analogy), whereas al-Shāfiʿī’s rests on qiyās al-shabah (analogy of resemblance). Moreover, Mālik’s mursal report has been recorded with a connected chain by ʿAbd al-Razzaq.

The root of the disagreement, therefore, lies in the conflicting reports and the competing analogies. Added to this is the basic principle, favoring Mālik’s view in the case of death, that once a person has sold something he no longer has any right to reclaim it. Consequently, Mālik—may Allah have mercy on him—holds the stronger position here, while al-Shāfiʿī’s reservation is due solely to his view that an isolated mursal report does not oblige legal action.

Mālik and al-Shāfiʿī also differed regarding a seller who finds his very merchandise with a bankrupt buyer after the latter has added an improvement, such as when he