What is the ruling when a stipulated condition concerns an attribute that is not the primary intent, and its absence is contrary to the stipulation?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If a condition is stipulated regarding a non-primary attribute, and the reality contradicts the stipulation, there is no option for rescission if the attribute turned out to be better than stipulated (e.g., stipulating kith (coarse hair) but finding sabt (smooth hair), or stipulating ignorance but finding knowledge). However, if the condition stipulated was one where the contrary offers a valid intention for the buyer, the option of rescission exists. For instance, if a Muslim slave was stipulated but a non-Muslim was delivered, or if a previously married female (thayyib) was stipulated but a virgin (bikr) was delivered, the buyer retains the option. The intention for stipulating a non-Muslim female might be related to her greater utility for Muslims and others, or to avoid the obligations of her religious duties. The intention for stipulating a thayyib might be due to an inability to handle a virgin or for the purpose of resale to someone unable to handle a virgin; thus, the buyer's intent is frustrated.
Supporting text
A dissenting view holds that there is no option for rescission in cases where the deviation results in an increase in quality (such as stipulating thayyib but receiving bikr), which is the position of Al-Shafi'i regarding the virgin status and the choice of Al-Qadi. It is considered unlikely that one intends the state of being thayyib due to an inability to handle a virgin, though this possibility is acknowledged because the stipulation implies intent.