What is the ruling on the buyer's right to return an item purchased with a defect after selling it?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If a buyer sells an item they purchased while it had a defect, their right to return it is forfeited because their ownership has ceased. If ownership returns to that initial buyer, their right to return it based on the original defect depends on their knowledge at the time of resale. If the seller knew of the defect or demonstrated consent to it through their actions, they cannot return it, as the act of selling signifies acceptance of the defect. If the seller was unaware of the defect, they retain the right to return the item to the original seller. This view is held by Al-Shafi'i. The justification is that the buyer was capable of rectifying the wrong by returning the item, and that capacity remains even if ownership temporarily left and returned. The impediment (the sale) has been removed, validating the right to return, analogous to cases where the right to return was suspended due to the seller's absence or another obstacle.
Supporting text
Abu Hanifa holds that the buyer cannot return the item unless the buyer obtained a dissolution (faskh) through a judge's ruling, because the right to return was extinguished by the sale. Scholars of the Shafi'i school present an alternative view: if ownership returns through means other than a court-ordered rescission based on the original defect, there are two positions. One position is that the buyer cannot return it because they rectified their grievance through the sale, and that remedy was not undone by a subsequent rescission.