What is the ruling for a buyer who keeps a defective item and takes the monetary compensation (Arsh)?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The buyer has the right to keep the defective item and take the monetary compensation (Arsh). This position is held by Ishaq. The basis for this ruling is that when a defect not known to the buyer becomes apparent, the buyer is entitled to compensation, similar to a defect arising while the item is in the buyer's possession. Furthermore, since a part of the sold item has been lost to the buyer, the buyer is entitled to compensation for that part, just as if the buyer had destroyed it after the sale. The compensation is calculated by determining the value of the item when sound, then its value when defective, and taking the corresponding proportion of the price based on the difference in value. This is because the item being guaranteed by the buyer at the purchase price means that the loss of a corresponding part necessitates the reduction of the corresponding part of the price.
Supporting text
Abu Hanifa and Al-Shafi'i hold that the buyer only has the choice between keeping the item without compensation or returning it entirely, unless returning the item is impossible. They base this on the case of the milked animal (Musarat), where the Prophet (PBUH) granted the choice between keeping it without Arsh or returning it. They argue that since the buyer possesses the right of return, they do not possess the right to take a portion of the price.