What is the ruling on returning a purchased concubine (jariyah) who was previously married (thayyib) if the buyer consummated relations with her before discovering a defect?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If the purchased concubine was previously married and the buyer engaged in intercourse with her before discovering a defect, the buyer has the right to return her, and he owes nothing in return for that act. This opinion is held by Zayd ibn Thabit, Malik, Al-Shafi'i, Abu Thawr, and Uthman al-Batti. The evidence for this ruling rests on the principle that intercourse in this scenario is an act that does not diminish the object's essence or its value, nor does it imply consent to the defect. Therefore, it should not prevent the rescission of the sale, similar to general usage or the intercourse of a husband.
Supporting text
A dissenting view, narrated from 'Ali (may Allah be pleased with him) and held by Al-Zuhri, Al-Thawri, Abu Hanifa, and Ishaq, prevents the return. This view treats intercourse as equivalent to a transgression (jinayah) because it necessitates compensation or penalty if done in another's property, thus invalidating the option to return, just as it would if she were a virgin. Another opinion, held by Shurayh, Al-Sha'bi, Al-Nakha'i, Sa'id ibn Al-Musayyib, and Ibn Abi Layla, permits the return but mandates that the buyer pay *arsh* (a compensation for the defect). They differed on the measure of this *arsh*: Shurayh and Al-Nakha'i suggest one-tenth of the price; Al-Sha'bi suggests an assessment by a judge (hukumat); Ibn Al-Musayyib suggests ten dinars; and Ibn Abi Layla suggests the *mahr* (dower) equivalent for a woman of her standing. This latter view stems from the premise that upon rescission, the buyer retroactively becomes one who engaged in intercourse in another's property.