What is the ruling when a sale is contracted based on a specific measure (e.g., ten cubits) and the actual measure is greater (e.g., eleven)?

Chapter on Selling Assets and Fruits

Al-Mughni

Book of Sales

Book 12 · Issue 1 · Bab 4

Open in Qurani

Primary text

There are two established narrations concerning this surplus. The first narration dictates that the sale is void because the seller cannot be compelled to deliver the excess, as he only sold ten, nor can the buyer be compelled to accept only a portion when he bought the entirety, especially considering potential harm in shared ownership. The second narration holds the sale as valid, and the surplus belongs to the seller. This surplus is viewed as an addition that harms the buyer, thus not invalidating the sale, similar to a defect. The seller has the option to deliver the full, increased amount or just the originally stipulated measure. If the seller agrees to deliver the entirety, the buyer has no right to object, as it is an improvement. If the seller refuses to deliver the surplus, the buyer has the option to annul the contract or accept the agreed price plus a proportional amount for the excess. If the buyer accepts the stipulated measure, the seller remains a partner in the excess measure.

Supporting text

Regarding the seller's right to annul the contract when the measure is in surplus, there are two opinions. One holds that the seller retains the right to annul due to the potential harm of shared ownership. The second holds that the seller has no right to annul because he agreed to sell the entire object for that price, and receiving the price while retaining a portion is an increase, which does not warrant annulment. Furthermore, this harm arose from the seller's own misrepresentation, distinguishing it from other defects.