To whom does the risk of loss (Daman) for a sold item transfer before the buyer takes possession?
Chapter on Selling Assets and Fruits
Al-Mughni
Book of Sales
Primary text
The risk of loss transfers to the buyer immediately upon concluding the sale, except for items that are measured by volume (Makil), weighed (Mawzun), or counted (Ma'dud), which remain the seller's responsibility until possession. This position is supported by the ruling of the Prophet, peace be upon him: "The increase (Khiraj) follows the guarantee (Daman)", and the sold item's growth belongs to the buyer, thus its guarantee rests with him. Furthermore, the saying of Ibn Umar establishes the tradition that whatever the transaction finds alive and whole belongs to the buyer. Since the item is not subject to a right of full satisfaction (Tawfiyah), and it is considered guaranteed by the buyer after possession, it should be guaranteed by him before possession, similar to inheritance. The specific prohibition concerning the sale of food items before possession indicates that other goods do not follow that ruling.
Supporting text
Abu Hanifa maintains that every sold item perishes under the seller's guarantee before possession, except for immovable property (Aqar). Al-Shafi'i holds that every sold item remains under the seller's guarantee until the buyer takes possession. Abu Al-Khattab narrated from Ahmad a second opinion supporting Al-Shafi'i’s view, based on Ibn Abbas stating that everything should be treated like foodstuffs, and because delivery is due from the seller, its impossibility due to perishing nullifies the contract, similar to measured or weighed goods.