What is the ruling when the seller refuses to hand over the sold item until the price is received, and the buyer refuses to hand over the price until the item is received, provided the price is a debt (*thaman fi al-dhima*)?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The seller shall be compelled to deliver the sold item first, and then the buyer shall be compelled to deliver the price. This position is held by Thawri and one opinion of Al-Shafi'i. The evidence for prioritizing the delivery of the sold item is that its delivery establishes and completes the sale contract, making its precedence superior, especially since the ruling pertains to the specific item itself, while the seller's right to the price is a debt on the buyer's liability. Rights attached to a specific object take precedence over those attached to liability, which is why a debt secured by collateral precedes a debt unsecured by collateral. The delivery of the sold item pertains to the essential benefit of the sale contract.
Supporting text
Abu Hanifa and Malik hold that the buyer shall be compelled to deliver the price first, arguing that the seller has the right to withhold the sold item until the price is delivered, similar to a mortgagee who does not have to surrender the mortgaged item before receiving what is due.