Khiyar al-Ayb: Defects, Remedies and Waiver

1. Why a defect option exists

Khiyar al-‘ayb is the purchaser’s legal option on discovering a qualifying pre-existing defect in the item sold.

Ordinary sale assumes goods are free of relevant defects. The response depends on whether the defect predated delivery, whether the purchaser accepted it knowingly, and whether a lawful return remains possible.

Distinguish return of the goods from compensation for a defect.

2. Original rule: keep or return

بَابُ خِيَارِ الْعَيْبِ
إِذَا اطَّلَعَ الْمُشْتَرِي عَلَى عَيْبٍ فِي الْمَبِيعِ فَهُوَ بِالْخِيَارِ: إِنْ شَاءَ أَخَذَهُ بِجَمِيعِ الثَّمَنِ وَإِنْ شَاءَ رَدَّهُ، وَلَيْسَ لَهُ أَنْ يُمْسِكَهُ وَيَأْخُذَ النُّقْصَانَ
Translation: When a buyer discovers a defect, the buyer may retain the goods for the full agreed price or return them; simply keeping them while demanding an automatic reduction is not a third free-standing option.

The basic remedy is the choice to return the item or keep it at the agreed price.

1. A specified machine costs Rs 20,000 and has a pre-existing hidden fault.
2. The purchaser may keep it for that price or return it in the qualifying circumstances.
3. The purchaser cannot unilaterally force a Rs 3,000 reduction merely by electing to keep it.

Later clauses provide a different remedy where return has become barred.

3. Timing of the defect matters

The chapter concerns a defect attributable to the earlier seller-side stage, not every problem appearing after purchase.

If a buyer received functioning goods and damaged them through later use, that newly caused damage is not itself the seller’s pre-existing defect.

Compare a concealed broken component already present when supplied with a component broken because the buyer dropped the machine.

4. Original rule: commercial custom

وَكُلُّ مَا أَوْجَبَ نُقْصَانَ الثَّمَنِ فِي عَادَةِ التُّجَّارِ فَهُوَ عَيْبٌ
Translation: Anything that reduces the price according to merchants’ established custom qualifies as a defect.

The legal measure is not personal disappointment alone. Relevant commercial custom and expert valuation help identify a qualifying defect.

1. A concealed electronics failure that depresses the market value.
2. A manufacturing flaw in fabric that lowers its trade value.
3. Disliking a previously known color does not by itself make an item defective.

5. Who assesses market defects

Defects differ by trade. In fabric, weaving faults and stains may be central; in a used vehicle, structural, engine, or safety failures may matter more.

Qualified market experts or tradespeople provide evidence of whether a flaw truly reduces value in the relevant trade.

The question is not merely whether someone dislikes a feature, but whether informed commercial valuation treats it as a defect.

6. Original historical clause: age and recurrence

وَالْإِبَاقُ وَالْبَوْلُ فِي الْفِرَاشِ وَالسَّرِقَةُ عَيْبٌ فِي الصَّغِيرِ مَا لَمْ يَبْلُغْ، فَإِذَا بَلَغَ فَلَيْسَ ذَلِكَ بِعَيْبٍ حَتَّى يُعَاوِدَهُ بَعْدَ الْبُلُوغِ
Translation: The historical text treats specified behaviors in minors as defects, but a childhood occurrence alone is not carried across puberty unless the behavior recurs after maturity.

This is a historical juristic rule concerning the former institution of slavery, not modern authorization to trade human beings.

Its doctrinal point is timing and recurrence: an occurrence in childhood does not automatically prove the same condition in adult life. Quduri mentions recurrence after puberty.

7. Why recurrence after puberty matters

Ibaq refers to absconding in the historical enslaved-person context; the other expressions mean bed-wetting and theft.

Fath al-Qadir explains that similar behavior in childhood and adulthood can have different causes. Earlier incidents alone do not prove a continuing adult condition.

This reconstructs the historical legal argument; it is not a present-day medical or moral diagnostic rule for children.

8. Original historical clause: odor

وَالْبَخَرُ وَالدَّفَرُ عَيْبٌ فِي الْجَارِيَةِ، وَلَيْسَ بِعَيْبٍ فِي الْغُلَامِ إِلَّا أَنْ يَكُونَ مِنْ دَاءٍ
Translation: In its historical classification, the text treats offensive breath or body odor as a defect for a female slave, and for a male slave if caused by illness.

Bakhar is offensive breath and dafar unpleasant body odor.

The clause records a gendered classification in a historical slave market, not a modern medical guideline or permissible basis for human sales.

The specific phrase illa an yakuna min da’ means “unless due to illness” in the case mentioned.

9. Original historical clause: unequal classifications

وَالزِّنَا وَوَلَدُ الزِّنَا عَيْبٌ فِي الْجَارِيَةِ دُونَ الْغُلَامِ
Translation: The historical passage categorizes illicit sexual conduct and birth outside marriage as defects for female slaves but not male slaves.

This is a faithful report of a historical sales classification, not an endorsement of judging a human being’s worth by parentage or applying slave-trade categories today.

A child does not bear moral blame for a parent’s acts. The chapter is studying the period-specific legal framework and its market categories, not prescribing discrimination.

10. Original rule: subsequent damage

وَإِذَا حَدَثَ عِنْدَ الْمُشْتَرِي عَيْبٌ ثُمَّ اطَّلَعَ عَلَى عَيْبٍ كَانَ عِنْدَ الْبَائِعِ فَلَهُ أَنْ يَرْجِعَ بِنُقْصَانِ الْعَيْبِ، وَلَا يَرُدُّ الْمَبِيعَ إِلَّا أَنْ يَرْضَى الْبَائِعُ أَنْ يَأْخُذَهُ بِعَيْبِهِ
Translation: If a new defect occurs in the buyer’s possession and a pre-existing defect is then discovered, the buyer may claim compensation for the earlier defect; return with the new damage requires the seller’s consent.

Two defects coexist: a pre-existing defect and a later defect while with the buyer.

Compensation for the original defect prevents harm to the buyer, while the seller cannot be forced to accept additional new damage.

Example: a machine had a hidden internal fault, and the buyer later broke its casing. The earlier defect may support an arsh claim, while return needs the seller’s consent.

11. Why the basic remedy is rescission

The earlier rule grants a return option, not an automatic discount. The later clause permits arsh because subsequent buyer-side damage blocks unilateral return.

1. Earlier defect, return possible: primary right of return.
2. Earlier defect plus new damage: compensation may be due.
3. Seller consents to receive the newly damaged item: return can be allowed.

Arsh is not an unrestricted unilateral discount in every defective sale.

12. Proportional approach to arsh

Arsh is generally analyzed through a proportional loss in valuation rather than simply subtracting an arbitrary sum.

1. Sound market value: Rs 10,000; value with the old defect: Rs 8,000.
2. The loss is 20%.
3. On an agreed price of Rs 12,000, a 20% illustration gives Rs 2,400.

This is a learning example; actual disputes require reliable valuations and proof of the qualifying defect.

13. Original rule: cutting cloth

وَإِنْ قَطَعَ الْمُشْتَرِي الثَّوْبَ فَوَجَدَ بِهِ عَيْبًا رَجَعَ بِالْعَيْبِ
Translation: When the buyer cuts the cloth and then discovers a defect, compensation for that defect is available.

Cutting alters the condition of the sold fabric, so the seller is not ordinarily forced to take it back in that changed state.

Fath al-Qadir explains that return can still occur if the seller agrees to receive it after cutting.

Example: eight meters of cloth are cut into garment panels and a pre-existing weaving flaw is then discovered. The old defect and buyer-caused cutting must be distinguished.

14. Why later disposal can change the remedy

Fath al-Qadir distinguishes cutting an item from later disposing of it by sale. Cutting may still allow return with the seller’s consent; a later onward sale can change whether the buyer was effectively holding back an available remedy.

Cutting, sewing and reselling are therefore not interchangeable events.

The distinction is explanatory detail from the commentary, not wording inserted into Quduri’s original clause.

15. Original rule: inseparable additions

وَإِنْ خَاطَهُ أَوْ صَبَغَهُ أَوْ لَتَّ السَّوِيقَ بِسَمْنٍ ثُمَّ اطَّلَعَ عَلَى عَيْبٍ رَجَعَ بِنُقْصَانِهِ وَلَيْسَ لِلْبَائِعِ أَنْ يَأْخُذَهُ
Translation: If the buyer sews or dyes the cloth, or mixes ghee into roasted-grain flour, and then discovers a defect, the buyer claims compensation; the seller cannot demand the altered goods back.

Sewing, dyeing and blending ghee into flour produce additions or alterations not easily detachable from the original goods.

1. A buyer dyes plain cloth after purchase.
2. A pre-existing fabric fault is discovered.
3. The seller cannot demand the newly dyed article under the original return option; proportional compensation is the relevant remedy.

16. Cutting versus inseparable increase

Cutting alone can create a later flaw that may still be accepted by the seller with consent.

Sewing and dyeing introduce an inseparable addition; Fath al-Qadir explains why returning the original subject without that added value becomes legally problematic.

Do not treat every post-purchase change as the same legal category.

17. Original historical rule: loss without buyer destruction

وَمَنِ اشْتَرَى عَبْدًا فَأَعْتَقَهُ أَوْ مَاتَ ثُمَّ اطَّلَعَ عَلَى عَيْبٍ رَجَعَ بِنُقْصَانِهِ
Translation: The historical text grants compensation if an enslaved person was emancipated or died and an earlier defect subsequently came to light.

This clause concerns slavery as a historical institution and is not a model for contemporary human transactions.

Its technical point is that return has become impossible through emancipation or natural death, but a claim for a pre-existing defect is still recognized in those described circumstances.

Impossibility of return does not always mean the defect claim also disappears.

18. Original rule: Abu Hanifah and the two disciples

فَإِنْ قَتَلَ الْمُشْتَرِي الْعَبْدَ أَوْ كَانَ طَعَامًا فَأَكَلَهُ لَمْ يَرْجِعْ عَلَيْهِ بِشَيْءٍ فِي قَوْلِ أَبِي حَنِيفَةَ، وَقَالَ أَبُو يُوسُفَ وَمُحَمَّدٌ: يَرْجِعُ
Translation: If the buyer killed the enslaved person, or consumed purchased food, Abu Hanifah holds that no defect compensation is recovered; Abu Yusuf and Muhammad allow compensation.

Here Quduri expressly records a difference: Abu Hanifah denies arsh in the stated buyer-caused destruction/consumption cases, while Abu Yusuf and Muhammad allow it.

A nonhuman illustration is food consumed before a claim for its previously existing defect is evaluated. The key question is how the purchaser’s act of consuming or destroying the item affects compensation.

The historical killing clause is quoted for textual completeness, not as present authorization.

19. Consumption is not natural loss

Natural loss and the buyer’s deliberate consumption or destruction are not identical.

The previous clause permits a claim in particular cases despite impossibility of return. This clause records a different result under Abu Hanifah where the buyer consumes or destroys the item.

Always identify: whether the defect was original, why the subject matter ceased to exist, and whose stated ruling is being applied.

20. Original rule: judicial return after resale

وَمَنْ بَاعَ عَبْدًا فَبَاعَهُ الْمُشْتَرِي ثُمَّ رُدَّ عَلَيْهِ بِعَيْبٍ، فَإِنْ قَبِلَهُ بِقَضَاءِ الْقَاضِي فَلَهُ أَنْ يَرُدَّهُ عَلَى بَائِعِهِ، وَإِنْ قَبِلَهُ بِغَيْرِ قَضَاءِ الْقَاضِي فَلَيْسَ لَهُ أَنْ يَرُدَّهُ
Translation: If goods sold on were returned to the intermediate buyer for a defect, a judicially imposed return lets that buyer proceed against the earlier seller; voluntary acceptance without a judge’s ruling does not carry the same right.

The source uses a historical enslaved-person transaction. For a property analogy:
1. Zayd buys a specified machine from Bakr.
2. Zayd resells it to Khalid.
3. Khalid returns it claiming a defect.
4. Zayd’s recourse against Bakr differs depending on whether the return was ordered by a judge or simply accepted voluntarily.

21. Why formal adjudication matters

A judicial ruling obliges the intermediate purchaser to accept the return and carries legal consequences for the earlier sale.

A voluntary acceptance may be the intermediate seller’s own concession; it does not automatically impose equivalent responsibility on the earlier seller.

That is why the text differentiates bi-qada’ al-qadi from bi-ghayr qada’ al-qadi.

22. Original rule: general defect waiver

وَمَنِ اشْتَرَى عَبْدًا وَشَرَطَ الْبَرَاءَةَ مِنْ كُلِّ عَيْبٍ فَلَيْسَ لَهُ أَنْ يَرُدَّهُ بِعَيْبٍ وَإِنْ لَمْ يُسَمِّ الْعُيُوبَ وَلَمْ يَعُدَّهَا
Translation: Where a sale includes a general release from every defect, the purchaser in this historical case cannot return for a defect, even though particular defects were not individually named or listed.

Al-bara’ah min kull ‘ayb means a general contractual release from defects. Quduri says an exhaustive list of each defect is not required for the described waiver.

Do not conflate the default defect option with a separate waiver condition. Contemporary consumer law, fraud, and different contractual contexts require separate examination.

23. A waiver is not a universal license to deceive

A general historical waiver should not be read as blanket authorization for intentional deceit or misrepresentation.

Default rule: the buyer may have an option on a qualifying old defect.
Special contractual term: a general release from defects in the described circumstances.
Separate issue: fraud or false representations may require further juristic and legal analysis, beyond this short clause.

24. Known flaws differ from hidden flaws

A buyer who knowingly accepts a disclosed flaw is in a different position from one who later discovers a separate concealed defect.

1. The buyer sees a cracked screen and accepts the phone in that condition.
2. A different hidden internal fault is discovered later.

These are distinct legal facts even though both involve a defective phone.

25. Four distinct remedies

1. Earlier defect, no later damage: keep at the price or return where conditions allow.
2. Earlier defect plus new damage: claim arsh or return with seller’s consent.
3. Cloth sewn or dyed: compensation; seller cannot demand the altered article.
4. General waiver at sale: historical text limits defect-based return.

The facts governing remedy include the original sale, the present state of the goods, and the source of the defect.

26. Applied case study

A used machine is sold for Rs 50,000. Later its pre-existing hidden mechanical fault is discovered; meanwhile, the purchaser damaged its exterior.

Ask:
1. Is the mechanical defect commercially material?
2. Is the exterior damage genuinely subsequent?
3. If yes, what arsh is due for the earlier defect, and will the seller consent to return?

The sequence separates liability for the old defect from later buyer-side damage.

27. How this chapter differs from Level 108

Khiyar al-ru’yah arose because the buyer had not adequately seen the goods. Khiyar al-‘ayb concerns a qualifying old defect that reduces relevant market value.

1. Furniture is bought without viewing it: inspection-based option.
2. Furniture is viewed but concealed termite damage is later found: defect-based option.

One transaction can raise both concerns, but the legal grounds remain distinct.

28. Key terms recap

‘Ayb — a qualifying commercial defect.
Mabi‘ — the sold article.
Radd — legally grounded return.
Arsh al-‘ayb — compensation for an earlier defect in specified cases.
‘Ayb hadith — subsequent defect.
Bi-qada’ al-qadi — by judicial ruling.
Shart al-bara’ah — contractual waiver of defect claims.

29. Chapter synthesis

The chapter’s reasoning proceeds in sequence:
1. Establish a qualifying, pre-existing trade defect.
2. Check prior disclosure and contractual waiver.
3. If return is available, choose return or retention at the full price.
4. If later damage or inseparable additions prevent return, consider arsh and seller consent.
5. Distinguish judicial from voluntary return in onward sales and remember the stated disagreement on destruction or consumption.

The next chapter is al-bay‘ al-fasid, invalid/irregular sales.