Does a separate, detached addition (like offspring or produce) prevent the seller's right to rescind the sale?
General Chapter
Al-Mughni
Book of the Insolvent (Bankruptcy)
Primary text
A separate, detached addition, such as offspring or produce, does not prevent the seller's right to rescind the sale. This is the established position among our companions, and it is the view held by Malik and Al-Shafi'i. This applies whether the primary object of the sale decreased in value or not, provided the defect pertains to the quality, and the addition belongs to the bankrupt seller. This interpretation aligns with the apparent view of Al-Kharqi, as he prohibited rescission due to an attached addition because it belongs to the bankrupt, making the detached addition more clearly permissible for rescission. This is the opinion of Ibn Hamid and Al-Qadi, and it is the soundest view, God willing. The evidence supports the buyer's right to the growth because the liability (daman) rests upon the buyer, as indicated by the Prophet's statement, "The yield follows the liability (Al-Kharaj bil-Daman)".
Supporting text
Abu Bakr holds that the addition belongs to the seller. This is also the Madhhab of Malik. Hanbal narrated from Ahmad that the offspring of a female slave or the offspring of a riding animal belong to the seller, arguing that since it is an addition, it belongs to the seller just like an attached addition. This dissenting view is countered by the argument that the detached addition separated while in the buyer's possession, therefore it belongs to the buyer, similar to a case where the item is returned due to a defect. Furthermore, when rescission occurs, the seller has the right to reclaim the original object but not the detached addition, unlike rescission due to defect or option rights.