What is the ruling when a purchased item develops a new defect with the buyer before he learns of the original defect?

Chapter on Selling the Musarrah (Animal with milk retained in udder)

Al-Mughni

Book of Sales

Book 12 · Issue 1 · Bab 5

Open in Qurani

Primary text

Regarding a sale where a second defect occurs while the item is with the buyer, prior to his knowledge of the initial defect, there are two narrations from Ahmad. The primary view, held by Sufyan, Ibn Shubruma, Al-Shafi'i, and the Ahl al-Ra'y (and narrated from Ibn Sirin, Al-Zuhri, and Al-Sha'bi), is that the buyer does not have the right to return the item, but rather the deduction for the original defect (Arsh) is due to him. This is because the right of return serves to remove harm, and returning the item to the seller causes harm to him, and harm is not removed by introducing further harm. The secondary narration, held by Malik and Ishaq, states that the buyer has the right to return the item, in which case he deducts the value of the newly occurred defect from the price, or he may keep it and take the deduction for the original defect. Evidence for the permissibility of return is derived from the Hadith of Al-Musarat (the over-milked animal), where the Prophet (PBUH) ordered its return after its milk was taken, and the return of compensation for the milk. Furthermore, it is argued that since the right of return was established before the second defect arose, it does not cease except by clear proof, and there is no consensus or explicit text against it.

Supporting text

Al-Nakha'i and Hammad ibn Abi Sulayman stated that the buyer returns the item along with compensation for the defect that occurred with him. Al-Hakam stated that the item should be returned without any compensation mentioned.