Many of them discern no underlying rationale in these matters, but instead adhere to the apparent meaning of the texts. Those following either approach may be inconsistent in these matters; nevertheless, efforts have been directed toward upholding the schools’ positions on them. Allah knows best.

He—may Allah have mercy on him—was asked:

A man purchased a heap of goods in bulk, without measuring it. It then perished while in his ownership, before he had taken possession of it. He subsequently sold it before taking possession, unaware that it had perished.

If we hold that the first purchaser was not permitted to sell it before taking possession, and it perished, does he bear the loss, or does the original seller?

Has any scholar stated that the first purchaser bears the loss if the goods perish, even though he was not permitted to dispose of them before taking possession? Or do the right to dispose of the goods and liability for their loss necessarily go together, each implying the other?

He replied:

Praise be to Allah. In this case, the sale is invalid by agreement if the goods had already perished when the contract was concluded, whether he sold them on the basis of a description, without a description, or on the basis of an inspection made before the contract. Indeed, in such a case, even if they perished after the contract but before they were found to conform to the description or their previously observed condition, the sale would not be rescinded. But if it becomes clear that they had already perished when the contract was concluded, the sale is undoubtedly invalid.

As for liability for their loss, the apparent position of the schools of Mālik and Ahmad is that the loss is borne by