The scholars agree that when the benefit contracted for in a lease is lost before the lessee can make use of it, no rent is due for that benefit. An example is hiring an animal that dies before one can use it. Likewise, if an item sold perishes before the purchaser can take possession of it—for example, someone buys a qafīz (a measure of grain) from a heap, and the heap perishes before that quantity is separated out and taken into possession—the seller bears the loss, without dispute. They disagree, however, about its perishing after the purchaser has been enabled to take possession but before actually doing so, as when someone purchases a defective item and is enabled to take possession of it. There are two well-known opinions on this.

The first is that the seller is not liable. This is the position of Mālik and the well-known position reported from Ahmad, based on Ibn ʿUmar’s statement:

“The established Sunnah is that grain sold after it has been gathered belongs to the purchaser.”

The second is that the seller is liable. This is the position of Abū Hanīfah and al-Shāfiʿī, although Abū Hanīfah excepts real property. Nevertheless, he holds that placing the property at the purchaser’s disposal constitutes taking possession, as does Ahmad according to one of the two reports from him.

His position thus comes close to that of Mālik and Ahmad: the seller bears the loss when the property perishes, on the basis of the authentic report that the Prophet—may Allah bless him and grant him peace—said:

“If you sell fruit to your brother and a calamity strikes it, it is not lawful for you to take any of your brother’s wealth. How can any of you take his brother’s wealth without right?”

According to al-Shāfiʿī’s well-known position, however, the purchaser bears the loss if it perishes