Does the seller of a defective item forfeit the right to claim compensation (Arsh) if they subsequently sell the item?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The apparent view according to Al-Kharaqi suggests that the seller forfeits the right to compensation (Arsh) regardless of whether they knew of the defect when selling or not. This aligns with the position of Abu Hanifa and Al-Shafi'i. The reasoning is that preventing the return [of the item] was due to the seller's own action, akin to them destroying the sold item. Furthermore, by selling the item, the seller has addressed their perceived grievance, similar to a situation where the defect is removed, thus nullifying the right to Arsh.
Supporting text
Al-Qadi states that if the seller knew of the defect upon selling, they forfeit the Arsh due to implicit consent to the item being defective. If they were unaware, they retain the right to Arsh, a position attributed to Ahmad, because the buyer did not fulfill the contract's obligations, and the buyer's consent to the defective item did not occur.