Fiqh, Evidence & Legal Reasoning: When both parties of a sale are harmed by defective items

One of my current projects is to give students of fiqh a taste of the evidence behind rulings and legal reasoning, as well as a few hints as to why one opinion is preferred over others.

Several legal maxims concern harms and their removal. The main maxim is “Do not harm, and do not reciprocate harm.” This maxim comes from a hadith narrated by Ibn Majah which has the same wording. One of its sub-maxims is “Harms are removed.” A specific case that falls within these maxims is that buyers can return an item if it is determined that the item had an unknown defect. In this case it is possible to return things to the way they were before the sale without initiating a new harm. But sometimes things are not so straightforward.

Suppose that the buyer had purchased an item which has an unknown defect-x. After the buyer and seller complete the sale, the item develops new defect-z and defect-x is discovered. The seller and buyer both agree that defect-x existed prior to the sale. Both parties agree that there is something wrong, but neither one wants to be stuck with the item. What to do? Here removing harm from one party will result in initiating harm for the other:

  • The seller cannot be forced to accept the item without being harmed by the new defect-z.
  • The buyer cannot be forced to accept the item without being harmed by previously-unknown defect-x.

One way to repel the injustices to both buyer and seller is to require the seller to compensate the buyer for the original defect (defect-x). This is done by giving the buyer a portion of the price that is proportional to the decrease in value resulting from defect-x. If the value is 100 without a defect and 90 with the defect, the compensation will be one-tenth of the sale price. The compensation value is based on the lowest value of the item from the day it was sold to the day the buyer took possession of it.

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