Is it necessary for the sellerto declare all defects and faults when
selling an item, or is it the buyer's responsibility to discover them?
<ANSWER>
In the name of Allah, Most Compassionate, Most Merciful,
A basic principle of Islamic commercial law is that when selling any
item or product, it must be sound and free from defects and faults.
[See: Al-Majalla al-Ahkam al-Adaliyya , Article: 336] As such, it is
the seller's responsibility tobe truthful and point out the specific
defect if he has knowledge of it; otherwisehe will be guilty of
committing the grave sins of cheating and deception.
Imam Bukhari (Allah have mercy on him), in the chapter titled "Buyer
and seller making things clear and not concealing anything and showing
good faith" of his Sahih , relates from al-Adda' ibn Khalid who said,
"The Messenger of Allah (Allah bless him & give him peace) wrote for
me [whenpurchasing from me]: 'This is what Muhammad, Messenger of
Allah (Allah bless him & give him peace), has purchased fromal-Adda'
ibn Khalid. A sale from one Muslim to another, with no [hidden]
defect, no taint and no deception.'" (Sahih al-Bukhari 2/731)
Imam Bukhari then quotes the Companion Uqba ibn Amir (Allah be pleased
withhim) as saying, "It is not lawful for one to sell goodsknowing
that there is a defect in them without mentioning it." (ibid)
Sayyiduna Hakim ibn Hizam (Allah be pleased with him) narrates that
theMessenger of Allah (Allah bless him & give him peace) said, "The
seller andthe buyer have the option [to conclude the sale] as long as
they have not separated. If they both speak the truth and makethings
clear , they will be blessed in their sale. But if they both conceal
and lie, the blessing of their sale will be wiped out." (Sahih
al-Bukhari no 1974 and Sahih Muslim 1532)
Imam Nawawi (Allah have mercy on him), in explanation of this hadith,
states, "This (i.e. speaking the truth and making things clear) means
that both parties clearly mention to each other what needs to be
mentioned such as declaring a defect in the item and the like…"
(Al-Mihhaj sharh Sahih Muslim, p 1170)
Wathila ibn al-Asqa' (Allah be pleased with him) narrates that the
Messenger of Allah (Allah bless him & give him peace) said, "Whoever
sellsdefective goods without declaring it remains in the wrath of
Allah or [he said)] the angles keep cursing him." (Sunan Ibn Majah
2873)
Imam Haskafi, the renowned classical Hanafi jurist, states, "It is
unlawfulto conceal a fault in the item being sold or in the price,
since deception is haram." (Al-Durr al-Mukhtar 5/47)
It is stated in Al-Fatawa al-Hindiyya :
"If a person wishes to sell faulty goods, and he knows [that they are
faulty], it is necessary (wajib) for him to reveal it. If he does not,
then some of our scholars state that he will become an open sinner
(fasiq) whose testimony is to be rejected [in a court of law]."
(Al-Fatawa al-Hindiyya 3/210)
All of the above clearly demonstrates that the seller is under
obligation topoint out any faults or defects in the item being sold.
Failure to do so, despite having knowledge of it, constitutes a grave
sin.
However, there are a few points to keep in mind here:
1) A defect (ayb) is that which, in the opinion of traders and
experts, reduces the market value of an item. (See the Ottoman Courts'
Hanafi Fiqh Manual on commercialtransactions, Al-Majallah al-ahkam
al-adaliyya , Article: 338). As such, the seller is not obliged to
mention the normal wear and tear of the item being sold.
2) The defect or fault must have existed while the item being sold was
in the possession of the seller, and not after. This includes any
defect which occurs before sale or after the salebut before the seller
delivers it to the purchaser.(Al-Majallah al-ahkam al-adaliyya,
Articles: 339 and 340)
3) If a seller sells a defective or faulty item without declaring it,
the purchaser has a right to cancel the transaction. He may accept the
item as it isfor the fixed price, or return it and get his moneyback.
This is called the 'Option on account of Defect (khiyar al-ayb).'
(Al-Majallah al-ahkam al-adaliyya, Article: 337)
4) If the seller delegates the responsibility of inspecting the item
to the purchaser and says that he is not responsible for any defects
or faults, and the purchaser accepts, then theseller will not be
sinful of concealing the truth and cheating. Moreover, the purchaser
will not have a right to cancel should he discover a fault in the item
sold. (Imdad al-Ahkam 3/404 & Al-Majallah al-ahkam al-adaliyya,
Article 342)
And Allah knows best
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