4.THE RETURN OF MERCHANDISE BECAUSE OF A DEFECT
THE RETURN OF MERCHANDISE BECAUSE OF A DEFECT
(The criterion for defect is based on something that is expected to exist (in merchandise), whether this expectation results from:
1. stipulations agreed upon;
2. the customary level of quality for merchandise of its type;
3. or outright deception by the seller.
The author does not mention (1) in this section, but confines himself to (2) and (3).)
INFORMING A PROSPECTIVE BUYER OF DEFECTS IN MERCHANDISE
Whoever knows of a defect in the article (he is selling) is obliged to disclose it. If he does not, he has cheated (the buyer, which is prohibited by the Prophet’s statement (Allah bless him and give him peace), “He who cheats us is not one of us”), though the transaction is valid (provided the buyer accepts it, as discussed below).
RETURNING DEFECTIVE MERCHANDISE
When a buyer notices a defect in the merchandise that existed when the seller had it, he is entitled to return it (though if he is content to accept the defect, he does not have to return it. He may also return it when the defect occurred after the sale but before the merchandise was delivered, since the merchandise is the seller’s responsibility during this period).
The criterion (of defectiveness) is:
a) any flaw that diminishes the article or its value to a degree that hinders a valid purpose;
b) provided that such an imperfection does not usually exist in similar merchandise.
(The former restriction excludes such things as amputation of a surplus digit or a minor nick from the animal’s thigh or hock that is inconsequential and does not obviate its purpose, in which case there is no option to return it. The latter restriction excludes defects not generally absent in similar merchandise, such as missing teeth in older animals. There is no option to return such merchandise, even if the value is diminished.)
If the buyer notices a defect in the merchandise after it has been destroyed (whether physically, such as an animal being killed, a garment worn out, or food eaten; or whether legally finished, by being no longer permissible to transfer from person to person, as when a site has been made an endowment then a compensation (from the seller to the buyer) is obligatory. (The buyer is entitled to it because of the impossibility of returning the article due to its no longer existing. Compensation means a part of the article’s price whose relation to the whole price is the same as the relation of the value which the defect diminished to the full value of the article if it had been without defect. (The difference between price and value is that the value is how much money an article is worth in the marketplace, while the price is whatever the sale agreement specifies, whether this be more or less than the value.) The value in such a case is fixed at the lowest value (for articles of its type current in the marketplace) between the time the deal was made and the time the buyer took possession of it.)
The buyer is no longer entitled to seek compensation for such a defect if (he notices the defect after) he no longer owns the article because of having sold it or otherwise disposed of it. But if such an article returns to the buyer’s possession after this (i.e. after having left his ownership, whether as a gift, or returned (from a sub” sequent buyer) because it was defective, or because of a cancelled deal, or he buys it back), then he is entitled to return it (to the person who originally sold it to him).
If an additional defect occurs in an article (other than the above-mentioned defect (that existed before the buyer received the article» while it is in the buyer’s possession, then the buyer is only entitled to take a compensation (from the seller, to compensate for the original defect) and is not entitled to (insist that the seller accept) return (of the article for a full refund).
But if the original seller is willing to accept it back with the (new) defect, (refunding the original price,) then the buyer is not entitled to (keep the article and) demand compensation (for the original defect. Rather, the buyer is told, “Either return it, or else be content with it as it is and you get nothing”; for the harm to the original seller which is what prevents (it being obligatory for him to accept) its return no longer exists if the seller is content to take it back, and the merchandise is as if the additional defect never occurred.
Their agreement is implemented if buyer and seller agree upon:
1. the seller taking it back with (the seller refunding the original price, and the buyer giving him) compensation for the new additional defect;
2. or the buyer keeping the merchandise, and the seller paying him compensation for the original defect;
since either of these options might satisfy the interests of the two parties. If the buyer and seller disagree about which of these two options should be implemented, the decision goes to whichever of them requests option (2), whether this person is the buyer or the seller, since it confirms the original contract).
If the new defect which occurs while the article is in the buyer’s possession is the sole means of disclosing the old defect, such as breaking open a (spoiled) watermelon or eggs, and so forth, then the new defect does not prevent (the obligation of the seller to accept) its return. But if the new damage exceeds the extent that was necessary to reveal the original defect, then the seller is no longer compelled to accept it back.
It is a necessary condition for (cases where the buyer seeks a refund for something he is) returning (because of a defect) that the buyer return it immediately upon noticing the defect (and his option to return it is cancelled if he delays without an excuse). On his way back to the seller, he should have two witnesses affirm that he is cancelling the agreement (so if the seller is unavailable at the time, the buyer is nevertheless able to prove that he went to return it immediately). If the defect is noticed while one is praying, eating, using the lavatory, or at night (if the night presents a problem in returning it), then one is entitled to delay returning it until the hindrance preventing one from doing so is no longer present, provided one stops using and benefiting from it. If the buyer delays returning it when capable of doing so, then the seller is no longer obliged to accept the article back for a refund, or no longer obliged (in cases like) to compensate the buyer for the original defect (because the delay gives the impression that the buyer is satisfied with the defect).
(The term murabaha applies to sales where the seller states the price in terms of “the original price plus such and such an amount as profit,” whether by original price he means the amount he originally paid for the whole lot, or whether he means the proportion of that price represented by the percentage of the lot which he is now selling.)
The seller in murabaha (meaning an agreement where the price consists of the original price plus increment) is obliged to inform the buyer of any defect that occurred in the merchandise while in his possession, such as by saying, “I bought it for ten [or “bought it for one hundred and sell it to you at what I bought it for, plus one dirham’s profit on every ten”] but such and such a defect happened to it while I had it.” (He is likewise obliged to say, for example, “Such and such a defect appeared in it that was from the previous owner, and I accepted this. “)
The seller in murabaha is also obliged to explain how much time he was given to pay the original price (since deferring payment generally raises the price, and merely stating such a raised price without mentioning that it was deferred would give the new buyer a false impression). (The author should have mentioned (that telling the prospective buyer the above information is also obligatory in sales of) discount (on a lot of goods or portion thereof), as when the seller tells someone, “I sell it to you for what I bought it for, minus one from every eleven.” These rulings likewise apply to agreements stated in terms of, “I sell you it at the same price the original deal was made for. “)
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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