What is the ruling on the liability of the right of the injured party if the selling master is insolvent (mu'sir)?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If the seller is insolvent, the right of the injured party does not lapse from the perpetrator's neck because the seller can only transfer his liability from the neck by ransoming the slave or an equivalent action, which is not achieved through the insolvent's estate. Thus, the right remains attached to the slave's neck, taking precedence over the buyer's right. The buyer has the option of nullifying the contract (khiyar al-faskh) if he was unaware that the right remained attached to the slave. If he nullifies the sale, he gets the price back. If he does not nullify and the injury justifies taking the entire slave, the buyer also gets the full price back, as the compensation (arsh) for such an injury equals the entire price. If the injury does not cover the entire slave's value, he recovers the amount of the arsh.
Supporting text
If the buyer was aware of the defect (the attached right) and accepted it, he recovers nothing, as he purchased a defective item knowingly. If the buyer chooses to ransom the slave himself, the sale remains valid, as he stands in the place of the seller regarding the option between handing over or ransoming, and his recourse against the seller for the ransom amount is like paying off someone else's debt. If the injury mandates Qisas, the buyer has the choice between returning the slave or taking the compensation amount (arsh). If Qisas is executed, the arsh becomes definite, which is proportional to the slave's value difference between being a perpetrator and not, and the sale is not voided ab initio. This is the view of the followers of Al-Shafi'i.