Khiyar al-ayb (option of defect)

Khiyar al-ayb (option of defect) is a compound of 'option' and 'defect'. The majority use this name; the Malikis usually call it the option of deficiency (khiyar al-naqisa). Ibn Nujaym and Ibn al-Humam define a defect as what the sound natural state lacks, so as to count as deficient; Ibn Rushd as what falls short of the natural creation or the lawful form, with a real effect on the price; al-Ghazali as any disliked attribute whose absence customarily is assumed for the thing. ¹ Lawfulness of return for defect: the jurists agree in general that a defective thing may be returned. They cite the Qur'an, that trade must be by mutual consent (Surah al-Nisa, 4:29), since knowledge of a defect means the consent is not full; and the Sunnah: the report of Aisha about a man who bought a slave, used him, found a defect and returned him, and the Prophet's ruling that the yield goes with the liability. Al-Kasani also cites the hadith of the sheep with its udder held full, and argues by analogy that the buyer pays a price for a sound thing and does not get it. ¹² Duty of the seller to disclose: the seller must tell the buyer of a defect that gives the option. Not mentioning a defect that gives no option is not forbidden deceit, in the view of Imam al-Haramayn. The majority hold that disclosure is obligatory, and whoever hides a defect is sinful, a matter on which there is no dispute according to Ibn Qudama and al-Subki. Ibn Rushd counts it as eating wealth falsely. The sources cited include the hadith of Uqba ibn Amir that a Muslim sells to his brother only with the defect shown, the hadith of Wathila ibn al-Asqa' against selling without explaining what is in it, and the saying «whoever cheats us is not of us», from the heap of grain that the Prophet found wet. ²³ Concealment and the validity of the sale: a sale that conceals a defect giving the option is valid though sinful, according to most jurists, since the prohibition is on concealment, not on the contract. If the buyer learns of the defect after buying and accepts it, the seller is still at fault and the sale holds, as al-Shawkani holds. The Companions' practice included Ibn Umar buying camels with mange, and accepting them when told of it. ³ Duty on others than the contracting party: the duty to disclose is not limited to the seller but extends to anyone who knows of the defect, on the report of Wathila and the many texts on giving counsel. ³ Timing of the disclosure: a seller or a third party who knows of a defect should disclose it before the sale, so that the buyer may refrain; if the third party is not present, or cannot, then after the sale, so that the buyer may return the thing. The duty is strongest when only a third party knows. The purpose of the option is to remove harm from the buyer: a sale implies a sound object, and when soundness fails through a defect the buyer has the choice, because consent is part of the sale's nature. ⁴⁵ Three conditions for the option of defect: a real defect must appear; the buyer must not have known of it at the contract; and the seller must not have stipulated release from defects. A defect counts when it lowers value or defeats a valid purpose, and when soundness in that respect is the normal state of that kind of thing. ⁵⁶ Definitions: the Hanafis take any thing that lowers value in the eyes of experts, whether or not the substance is reduced; a grave defect in a dowry moves it from good to middling to poor quality. The Shafiis take a defect that lowers value or substance so that a valid purpose is lost, when the usual state of such things is free of it; the Hanbalis count loss of substance even where value rises, and loss of value even where substance is unchanged. The Malikis count a house where someone was killed as defective, since people shun it and its price falls. ⁵⁶⁷ Normal state: the freedom from the defect must be the normal state of the kind of thing. What is common in such things is not a defect; for instance a usual sediment in oil. Experts decide: merchants for goods, craftsmen for crafted things. The Hanafis require the agreement of experts (if they disagree, there is no right of return); the majority of the Shafiis accept one expert, and the author of al-Tatimma requires two. If the two disagree and no other authority is available, the seller's word stands with his oath. ⁷ Conditions of effect: the defect must be in the object itself, not in the other party, a pledge, or a guarantor. It must be old, that is present at the contract or arising before receipt; a defect that arises after receipt gives no option, though the Malikis apply the rule of warranty (three days for slaves; a year for madness, leprosy and vitiligo). The Hanafis make an exception for leasing, which is annulled by a new defect, since leasing is a contract of benefits that accrue gradually. ⁸ The buyer's own act: a defect caused by the buyer before receipt gives no option, in the Shafii view. The defect must remain after delivery and until return: if it disappears before the buyer returns the thing, the right to return lapses. The Hanafis and Shafiis require that the buyer prove the defect is present with him, since a defect present with the seller may be removed. ⁸⁹ Removable defects: no option where the defect can be removed without hardship, such as a maker's stamp on cloth that washing does not harm, or stain on a garment that washing removes. If the seller minimised the defect and the buyer accepted it, the Malikis grant the buyer the right to return unless a new defect has arisen; then he may choose between return and compensation (arsh), as in a legal opinion by al-Wansharisi about a beast wounded by a spear. ⁹¹⁰ Proof of defects by how visible they are: a visible defect needs no proof beyond the buyer's sight, and he may sue the seller. A hidden defect known only to experts (such as pain in the liver or spleen) is proven by two Muslim men or one just man of expertise. A defect only women see is proven by the word of one just woman, two being safer; in the Hanafi view it proves the claim but not return. A defect known only by trial, such as a slave who absconds, needs two men or a man and two women. ¹⁰ The seller's oath: if the buyer cannot prove the defect was with the seller, the two companions of Abu Hanifa have the seller sworn; Abu Hanifa does not. If the defect may occur in the buyer's hand, the oath is absolute (a definite oath); if the seller only knows of another's act, he swears on knowledge. If the seller refuses to swear, the defect is established against him. ¹⁰¹¹ Knowledge of the defect: the buyer must be unaware of the defect. If he knew it at the contract or at receipt he has no option, since by buying or taking the thing with knowledge he consents in effect. A defect that is obvious and that anyone would see counts as known, and so does a defect the seller pointed out. Where the seller said that a thing is faulty as a condition of sale, as with a bull sold on condition that it sleeps in the plough, the seller is free of blame. ¹¹ A buyer who knows of a thing that is a defect without knowing it is one: if he takes it and only later learns that it is a defect, the question is whether the defect is plain. A plain defect that anyone sees gives no right to return; a defect that only experts know gives the right. Likewise a buyer who knows a coin is false, but not how many are false, has not consented to the defect. ¹² The release from defects: the option is lost if the seller stipulates release. A release is valid in the Hanafi view whether the defect was known or unknown to the seller and whatever the thing; Malik and al-Shafii allow it only for animals. Such a sale with release is a special type called the sale of release. ¹²¹³ Origin and the views: the report of Ibn Umar, who sold a slave with release and was challenged over a hidden illness; Uthman ordered him to swear he did not know of it, and he refused, took the slave back, and later sold him for more. The jurists differ on the release: release from all defects whether known or not (Abu Hanifa, Abu Thawr, from Ibn Umar and Zayd); no release unless the defect is named (Ibn Abi Layla, al-Thawri); no release unless the buyer has seen it (some Shafiis, Shurayh, Ata, a report of Ahmad and Ishaq); release only from hidden defects in animals (Malik, and the apparent view of al-Shafii); a release only in a sale of spoils, of a bankrupt, or in debt payment; or a voiding of the sale altogether, a Shafii view. ¹³¹⁴ Kinds of release: particular (of a named defect) or general (of all defects). If it refers to a defect existing at the contract, it covers only that. If it refers to a future defect arising before receipt, the condition is void and the sale invalid. If unqualified, Abu Hanifa and Abu Yusuf take it to cover defects at the contract and until receipt; Malik, Muhammad, Zufar and al-Hasan ibn Ziyad limit it to defects at the contract. ¹⁴ Contracts that take the option of defect (Hanafi list): sale and purchase (the valid sale, not the void one, and including exchange of money); leasing, which takes it whether the defect is old or new, and where the lessee may return before and after receipt; division; settlement on property; the dowry; the compensation of khul'; and the settlement for willful blood. For these, return is only for a grave defect, not a slight one. ¹⁴¹⁵ Ibn Rushd: contracts divide into three: those meant for exchange, which take the option without dispute; those not meant for exchange, such as a gift without return, which do not; and mixed contracts, such as a gift with intent of return, which he thinks do not. ¹⁵ Timing of the return: three views. (1) Immediately, meaning as soon as custom allows; whoever knows and does not return loses the right and bears the loss without arsh, the Shafii view and one of Ahmad. The Hanafi al-Hawi also holds this; Ibn Nujaym calls it strange, and the Hanafi view taken is that the option lasts. (2) Delayed, as long as no sign of consent appears, the view of the Hanafis (as relied on) and a sound Hanbali report. (3) A day or two, the Maliki view, where continued possession after that counts as consent. ¹⁶¹⁷ Effect on the contract's rule: the defect does not stop the transfer of ownership: the buyer owns the thing at once and the seller owns the price, since the sale is absolute in its pillars. The implied condition of soundness only stops the contract from being binding, not its basic effect. ¹⁷¹⁸ What the buyer may choose: three views. (1) Hanafis and Shafiis: return against full price, or keep the thing for the full price with no arsh; arsh only if return is impossible. (2) Ahmad and Ishaq: return, or keep with arsh, even when return is possible; but if keeping with arsh leads to ribā, keeping is free. (3) Malikis: a grave defect allows return or keeping free; a slight defect in land means arsh only, and in goods return, by the apparent view of the Mudawwana. The source of the dispute: whether the defect reduces the substance or the attribute. ¹⁸¹⁹ Conditions of return: the option must still exist; the thing returned must be as received, without a further defect such as a defect of partnership arising from split of the deal; and the deal must not be split before the whole thing is received, unless the seller accepts, since then it is damage the seller accepts. ¹⁹ Splitting the deal: when a thing is one deal, the buyer may not return part of it for a defect by compulsion, unless the rest is the seller's, in which case the part may be returned by compulsion; this is the view the judge relies on, since the valid reason is the harm of splitting the deal on the seller. Before the whole thing is received, the deal may not be split, whether the thing is one (cloth, a house), a measure in containers, two things in fact or one in account (like the two leaves of a door). ²⁰ The Malikis: if the sound part is lost, the buyer may return the defective part with its share of the price; if the sound part remains, he may return part by its share only if the defective part is not more than half, and the defect is not the purpose of the deal; otherwise he returns all or keeps all. The Hanbalis forbid return by splitting in one thing, and in two things that lose value when split; the Shafiis do not allow returning part, though al-Qadi Husayn allowed it where there is no split on the seller. ²⁰²¹ Splitting by plurality of parties: when two buyers buy one thing and find a defect, one may return it alone according to Abu Yusuf and Muhammad; Abu Hanifa says no, since the return would not be of the thing as received (a new defect of partnership). The Shafiis and Hanbalis distinguish a plural deal (several sellers or buyers, or price stated per part) from a single one: the first allows return of one share; if one seller is absent, the buyer returns the present seller's share by its price share. ²¹²² Knowledge and consent: the Hanafis require the other party to know of the return, whether before or after receipt; a return without his knowledge is suspended, and the deal binds if the term lapses. The Shafiis and Hanbalis require neither knowledge, consent, nor a judge's ruling. Before receipt the Hanafis need neither consent nor judgement; after receipt they need one of them, because the deal is complete on receipt. ²²²³ Nature of the return and its effect on resale: in Hanafi terms, a return by consent after receipt is a rescission between the parties but a new sale as against others; a return by judgement annuls for all. The effect appears in a chain of sales: if the second buyer's return was accepted by judgement, he may return to his seller; if by consent, he may not, because it is a new sale for the third party. Before receipt, the first buyer may return to the first seller in all cases. Ibn Qudama holds that a buyer who knew of the defect, or showed consent, may not return it. ²³²⁴²⁵ Keeping with arsh: when a return is impossible through increase, change or disposal, the buyer's right passes from return to compensation of the price, called the substitute right. This is the Hanafi and Shafii view; the Malikis have three kinds of defect (slight, with nothing due; grave, with return or free keeping; and medium, with compensation of the price); the Hanbalis let the buyer choose between keeping with the price reduction and return even when return is possible. Arsh is found by valuing the thing sound, then with the defect, and taking the proportion of the difference to the value and applying it to the price. The author of al-Ashbah holds that the value is taken on the day of the contract; al-Hasan al-Basri and Ahmad take the value at purchase. ²⁵²⁶ Obstacles to return: natural, legal and contractual. Destruction in the seller's hand prevents return, and the seller claims no price from the buyer. Destruction after receipt by a heavenly cause prevents return, leaving the price reduction. Consumption by the buyer through lawful use (eating food, wearing cloth until torn) also prevents return; Abu Hanifa differs from his two companions here, who hold it an obstacle to return but not to arsh. The Hanbalis distinguish whether the seller concealed the defect: if he did, the buyer may claim the whole price; the Malikis give the whole price only when the concealed defect itself caused the loss. ²⁷ Legal obstacles to return: a connected increase that is not generated from the thing (dyeing, sewing, building, planting) bars return whether before or after receipt, because it is a thing in itself and not a subordinate part; the seller's consent does not allow it, since it would be riba. A separated increase generated after receipt (offspring, fruit, milk, compensation for an injury) bars return in the Hanafi view, since returning it with the thing is profit on what was not guaranteed; al-Shafii counts it as earnings and does not let it bar return. ²⁸ Increases that do not bar return: a connected generated increase (growth, fattening; for the Hanbalis the unborn young before birth and the fruit before pollination) does not bar return in the apparent Hanafi report, unless the buyer refuses to return it with the thing, in which case he takes the arsh; Muhammad differs. A separated generated increase before receipt (offspring, milk, fruit on trees) does not bar return, but the thing may not be returned alone: the buyer returns all or keeps all at the full price; the Hanbalis return the thing alone and the increase stays with the buyer. A separated non-generated increase (rent, earnings) does not bar return, and the buyer keeps it by the rule that the yield goes with liability; in the Hanafi view he keeps it without price but not in good conscience, and the two companions give it to the seller; if he chooses to keep the thing, the increase is not good for him (not lawful in the sense of clean gain). ²⁸²⁹³⁰ If the increase perishes: by a heavenly cause the rule does not change; by the buyer's act the seller may accept the thing with the whole price, or refuse and take the lower price; by a third party's act return is impossible. ³⁰ The Malikis: Ibn Rushd gives five forms of increase. Growth from market change gives no option; an increase in the state of the thing gives none; growth within the thing or from its kind, such as offspring, is disputed; an added increase of another kind, like fruit that appears on a palm, gives no option, and the buyer returns the palm and its fruit before they ripen, with the cost of treatment, or keeps them with no return; an increase the buyer made by craft, such as dyeing or sewing, gives the option either to keep and claim the arsh or to return and become a partner in the value. Ibn Ghazi and al-Hattab describe valuations of two or four stages in these cases. ²⁹³⁰³¹ Contractual obstacle (a new defect): if the thing is defective with a new defect in the buyer's hand, by his act, by a heavenly cause, or by a living thing it harmed, the return of the defective thing is barred, and the substitute right to a price reduction takes its place, because the condition of return is that the thing be returned as received, and returning it would harm the seller who does not guarantee the new defect. The Hanafis and a Hanbali report give the buyer no right of return, since he caused the inability. The Malikis and another Hanbali report let him choose between keeping with the arsh of the old defect and return with the arsh of the new. The Shafiis hold that the right to return falls away automatically; if the seller does not accept the defective thing, the buyer adds the arsh of the new defect to it and returns it, or pays the arsh of the old defect and keeps it, and must notify the seller promptly. ³¹ Ending the option: by the return (or by keeping with arsh) and by acts that show consent; also by removal of the defect before return, if done quickly and without harm to the buyer. Ibn Hajar's examples: land with seed that the seller undertakes to remove quickly; a house with a roof fault that the seller repairs; land with buried stone whose leaving does no harm but whose removal does; and a shod animal, whose shoe, if removed, would worsen the defect. ³² Duty to refrain from return for the public interest: where keeping the defective thing is the better course and the contracting party's power is restricted: a bankrupt buyer, because return would take the creditors' gain; a guardian buying for his ward in a case where buying is lawful, since return harms the ward; and a mudarib who did not get the owner's order to return. ³³ Waiver: the Hanafis allow the buyer to waive the option of defect by express words, since it is his own right, unlike the option of sight, which is an option by law. A waiver for consideration is not allowed in the Shafii view: Ibn Hajar held that paying for the option to be surrendered is not valid, as it is an option of rescission, like the option of deliberation, which has no value. The arsh is not a payment for waiving the option but an assessment of the price loss. ³³³⁴ Express consent: words such as «I consent to the defect», «I waived the option of defect», «I approve the contract» end both the return and the arsh, since the right to return exists because the condition of soundness implied in the contract has failed, and consent to the defect means the buyer waived that condition. ³⁴ Acts of consent: three kinds. First, use without loss, such as wearing a garment, riding an animal (other than to return it, water it or buy fodder), irrigating, planting or harvesting land, or offering the thing for sale or lease, even once; these show a wish to keep the thing. Second, destroying the thing, such as tearing cloth or killing an animal, which ends the option. Third, taking the thing out of ownership by a transfer, such as sale, gift with delivery, or settlement; the return to the seller is then barred for the buyer, who is held responsible for the barrier, so he has no right to the arsh either. If he later gets the thing back by an option of condition or of sight, he may return it to the seller, by judgement or by consent before receipt, but not by consent after receipt. ³⁴³⁵ Other views on acts of ownership: the Hanafis and Hanbalis hold that any transfer, even by a buyer ignorant of the defect, bars return and moves the right to the arsh. The Malikis say that a transfer with consideration ends both return and arsh, and without consideration leaves the arsh. The Shafiis distinguish a transfer that gives no hope of return, such as a waqf, which bars return, from one that leaves hope of return, such as a sale, which ends the option. ³⁵ Proof and dispute over the defect: claims and litigation arise between the contracting parties over the defect questions, whether the defect is old or new and over the cause of return. The Malikis and Shafiis have details on the dispute of seller and buyer, most of which fall under the general methods of proof after characterising claimant and denier; the Hanbalis addressed the dispute over whether the defect is old or new, and recorded that where the defect can admit the word of only one side, such as a fresh wound whose oldness the buyer claims, the word is that of the one who claims it without an oath; the detail is under the headwords qada and dawa. ³⁶ Transfer of the option of defect: the jurists agree that the option passes to the heir upon the death of the one entitled to it. ³⁶