Does returning an item due to defect require the seller's consent, presence, or a judge's ruling before or after taking possession?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The return of a sold item due to a defect does not require the seller's consent, presence, or the ruling of a judge, whether the return occurs before or after the buyer takes possession of the item. This position is held by Al-Shafi'i. The evidence for this ruling is that the buyer is exercising a right to nullify a contract that is rightfully his, which does not necessitate the seller's consent or presence, similar to the ruling on divorce. Furthermore, the right to return based on a defect is an established right, meaning it should not require the seller's consent, just as it does not require consent before taking possession.
Supporting text
Abu Hanifa holds that if the return occurs before the buyer takes possession, only the seller's presence is required, not consent. If the return occurs after possession is taken, it requires either the seller's consent or the ruling of a judge, because the ownership of the price (thaman) has been fully established for the seller, and ownership rights cannot be rescinded except with consent.