Does a seller retain the right to reclaim the specific sold article if part of it has been damaged or destroyed prior to the buyer's bankruptcy?
General Chapter
Al-Mughni
Book of the Insolvent (Bankruptcy)
Primary text
The seller is entitled to reclaim the article only if five conditions are met, one being that the article remains in its entirety and none of it has been destroyed. If any portion is destroyed, such as a part of a slave's limbs, the object itself perishes, part of a cloth is ruined, a house is partially demolished, or fruit from purchased trees with undeveloped fruit is lost, the seller loses the right to reclaim and becomes an ordinary creditor alongside the other creditors (aswah al-ghurama). This view is held by Ishaq.
Supporting text
Malik, Al-Awza'i, Al-Shafi'i, and Al-'Anbari hold that the seller has the right to reclaim the remaining intact portion and shares the loss proportionally with the creditors based on the value of the destroyed part. They argue that since the seller has the right to reclaim the whole, they retain the right to reclaim the remaining part, similar to someone who possesses the option (khiyar) or a father regarding a gift to his son. The primary ruling relies on the Hadith condition that the property must be found intact (bi-'aynihi), which is not met when part is lost.