What is the ruling on selling an item known to have a defect without disclosing it to the buyer?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
It is impermissible for a seller who knows of a defect in their merchandise to sell it without explaining it to the buyer. Failure to disclose renders the seller sinful and disobedient. This is established by the Hadith where the Prophet (peace be upon him) stated: 'The two parties have the option to cancel the transaction as long as they have not separated; if they spoke truthfully and clarified, blessings will be granted to them, but if they lied and concealed, the blessing of their transaction will be obliterated,' reported by Al-Bukhari and Muslim. Further prohibition is evidenced by the Prophet's statement: 'A Muslim is a brother to a Muslim; it is not permissible for a Muslim who sells something to his brother to conceal a defect from him.' Additionally, 'Whoever sells a defective item without clarifying it remains under the wrath of Allah, and the angels continue to curse him.' The Prophet (peace be upon him) also stated: 'Whoever deceives us is not one of us,' which scholars hold as Hassan Sahih and acted upon, considering deception forbidden and unlawful.
Supporting text
Despite the prohibition, the sale remains valid according to the majority of scholars, including Malik, Abu Hanifa, and Al-Shafi'i. A dissenting view is narrated from Abu Bakr Abdul Aziz, who held that the sale is void because it involves a prohibited act, and prohibition necessitates invalidity. However, the ruling validating the sale is supported by the precedent where the Prophet (peace be upon him) forbade the retention of milk in animals (Tassriyah) but upheld the validity of the sale itself.