Is compensation (*arsh*) due if the buyer performs an action that implies acceptance (like consuming or wearing) after becoming aware of the defect?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The understanding from the statement of Al-Kharqi is that if the buyer performs an action implying acceptance after knowing the defect, he forfeits the right to *arsh*. This is the view of Abu Hanifa and Al-Shafi'i, and it aligns with the position of Al-Qadi, who states that one who sells a defective item knowing its defect has no claim for *arsh* because his action implies consent to the defect.
Supporting text
The established view in the madhhab is that he retains the right to *arsh* because he has the option to retain the sold item and demand its compensation, which is equivalent to retaining it while aware of the defect. The seller failed to fulfill the contract's obligations, so the buyer retains the right to *arsh*, just as if he had emancipated the item before knowing the defect. Furthermore, *arsh* is compensation for the deficient part, and acting concerning other parts does not nullify the right to compensation for that specific deficiency.