Is a seller permitted to refrain from handing over a sold item after receiving the price, pending *Istibra'* (ascertaining the absence of pregnancy)?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The seller is forbidden from withholding the delivery of the sold item after receiving the price for the purpose of *Istibra'*. This is the opinion held by Abu Hanifa, Shafi'i, and reportedly Malik concerning a female slave deemed aesthetically displeasing (*qabihah*). The justification is that the contract is a sale of a specific, non-conditional item for which the price has been received, thus obligating immediate delivery, similar to all other sales. The alleged suspicion (*tuhma*) does not grant the seller the authority to prevent the buyer from taking possession of his purchased property, even in the case of an aesthetically displeasing slave.
Supporting text
It is reported that regarding an aesthetically pleasing slave (*jamila*), the slave should be placed in the custody of an arbiter until *Istibra'* is completed, due to the suspicion attached to her. If the buyer demands a guarantor from the seller to ensure the slave does not turn out to be pregnant, the seller is not obligated to provide one, as the seller forfeited the right to self-protection at the time of the contract, analogous to demanding a guarantor for a deferred price payment.