Book of Zakat

Cancellation Options Continued

Glossary

Cancellation Options Continued

[The Option to Cancel Due to a Defect]
Anyone who discovers a defect in something purchased, which he or she was unaware of, has the right to return it or to take compensation for the defect. ⁸²¹

[خيار العيب]
وَإِنْ وَجَدَ أَحَدُهُمَا بِمَا اشْتَرَى عَيْبًا لَمْ يَكُنْ عَلِمَهُ، فَلَهُ رَدُّهُ، أَوْ أَخْذُ أَرْشِ الْعَيْبِ.

Two men told me that they went to the Prophet (SA) during the Farewell Pilgrimage, while he was distributing the zakat, and they asked him for some of it. He looked them up and down and saw that they were strong and able-bodied. He said to them, “If you wish, I will give you some, but those who are rich, or strong and able to earn, have no share in it.” (D – from ‘Ubaydullâh ibn ‘Adiy. Nawawi: S)

{يَا أَيُّهَا الَّذِينَ آمَنُوا أَوْفُوا بِالْعُقُودِ.}

The Prophet (SA) said:

“…And Muslims [should] abide by the conditions [to which they have agreed], except a condition that will make haram what is halal or make halal what is haram.” (T – from ‘Amr ibn ‘Awf; T: ḥasan ṣaḥeeḥ)

...وَالْمُسْلِمُونَ على شُرُوطِهِمْ إلا شَرْطًا حَرَّمَ حَلَالًا أو أَحَلَّ حَرَامًا.

(-H, -S): the maximum period is three days. They indicated that the sale is binding from the conclusion of the contract by default; however, this option is an exception established by hadiths. In some of them, the number of days was specified to be three, as in the hadith in which the Prophet (SA) said to Munqidh, who used be deceived in transactions:

However, there is no hadith that clearly prevents two parties from agreeing on a longer term. The default they mentioned of the sales being binding is countered by another default which is, “Muslims [should] abide by the conditions [to which they have agreed].”
The position of (A) gives flexibility to stating any period in the return policies.

821. A purchaser has the right to return the merchandise or to take compensation for the defect, with the following conditions:
1) He or she was unaware of the defect at the time of purchase.

2) According to (a) + (-t), the seller did not clear himself or herself, at the time of contract, from all liabilities. This is similar to what we call ‘as-is’ sales. The position of (a) + (-M, -t) is the validity of

“When you trade, say: No deception, and for three days I have the option (to cancel).” (Ma; al-Albâni: S)

إذَا بَايَعْت فَقُلْ لَا خِلَابَةَ وَلِيَ الْخِيَارُ ثَلَاثَةَ أَيَّامٍ.

Any revenue the commodity achieves, or any separate increment or growth in it ⁸²² before the buyer becomes aware of the defect, is the buyer’s, because “profit follows liability.” ⁸²³

وَمَا كَسَبَهُ الْمَبِيْعُ، أَوْ حَدَثَ فِيْهِ مِنْ نَمَاءٍ مُنْفَصِلٍ قَبْلَ عِلْمِهِ بِالْعَيْبِ، فَهُوَ لَهُ؛ لأَنَّ الْخَرَاجَ بِالضَّمَانِ.

If the commodity is damaged, or the slave is manumitted, or it becomes impossible to return the purchase, then the buyer can take compensation for the defect. ⁸²⁴

وَإِنْ تَلِفَتِ السِّلْعَةُ أَوْ أُعتِقَ الْعَبْدُ، أَوْ تَعَذَّرَ رَدُّهُ، فَلَهُ أَرْشُ الْعَيْبِ.

[The Option to Cancel due to Tadlees ⁸²⁵]

[خيار التدليس]
وَقَالَ النَّبِيُّ : "لاَ تُصَرُّوْا

those sales and conditions if the defect was not known to the seller at the time of the sale. According to (A) + (+S), the sale will be valid, but the condition will be void. (-H): the sale and the condition are valid whether or not the defect was known to the seller at the time of the sale.

822. As in the case of the milk of a sold cow. The buyer does not need to return it with the cow; at the time the cow was milked, it was in the buyer’s custody and was his or her liability.

823. Reported from the Prophet (SA) as part of a hadith; reported by “A, D, T, N, Ma” and authenticated by at-Tirmidhi and al-Ḥâkim, with whom adh-Dhahabi concurred.
It is also a fiqh maxim.

824. For example, a buyer unknowingly buys defective merchandise for $10, and only later discovers a defect that makes the value of the merchandise $7 only. If it is lost or damaged before being returned to the seller, the buyer is still entitled to $3 from the seller if he or she is able to prove the defect.

825. Tadlees is any scam that results in the concealment of defects or ostensible enhancement of the merchandise. In the example given

The Prophet (SA) said, “Do not tie the udders of camels and sheep. Whoever buys one may choose what to do, [even] after milking it; anyone who wishes to may keep it, and anyone wishes to may return it along with one ṣâ‘ ⁴²⁶ [measure] of dates.” ⁴²⁷ Anyone who came to know

الإِبِلَ وَالْغَنَمَ، فَمَنِ ابْتَاعَهَا بَعْدَ ذٰلِكَ، فَهُوَ بِخَيْرِ النَّظَرَيْنِ بَعْدَ أَنْ يَحْلُبَهَا، إِنْ رَضِيَهَا، أَمْسَكَهَا، وَإِنْ سَخِطَهَا، رَدَّهَا وَصَاعًا مِنْ تَمْرٍ." فَأَمَّا إِنْ عَلِمَ تَصْرِيَتَهَا قَبْلَ حَلْبِهَا، رَدَّهَا، وَلاَ شَيْءَ مَعَهَا.

here, tying the udders makes it appear that the animal produces more milk than it actually does.

A Muslim may not hide a defect in merchandise that he or she sells to others. The Messenger of Allah (SA) said:

“The two parties to a transaction have the option (of cancelling it) until they (physically) separate. If they behave candidly and disclose (any defects), their deal will be blessed, but if they lied and concealed (the defects), the blessing will be obliterated.” (Ag – from Ḥakeem ibn Ḥizâm)

الْبَيِّعَانِ بِالْخِيَارِ مَا لَمْ يَتَفَرَّقَا ، فَإِنْ صَدَقَا وَبَيَّنَا بُورِكَ لَهُمَا فِي بَيْعِهِمَا ، وَإِنْ كَتَمَا وَكَذَبَا مُحِقَتْ بَرَكَةُ بَيْعِهِمَا.

826. As mentioned earlier, a ṣâ‘ is a measure of volume that is equal to four mudds. One mudd is the fill of the two hands of an average adult; approximately 0.75 liters.

827. (Ag – from Abu Hurayrah)

This hadith caused a well-known fiqh disagreement. The majority acted on the hadith. (A) + (+M, +S) (-H): He or she will have no option to return it. He argued that this is not a defect. He also found returning a measure of dates to be counter to qiyâs, meaning here the established principle of compensation by the like or by equal value. (His student Abu Yoosuf decreed that the buyer may return it with the value of milk taken.) (-H) further added that the reporter is not a faqeeh (scholar of jurisprudence), and thus refused to act on his narration which conflicted with established principles.

about it being tied before milking it may return it without anything extra.

The position of the majority seems stronger because the hadith is sound. The designation of the measure of dates (or, according to -M, -s, the main staple food of the people) is to guard against possible disputation over the amount of milk taken by the buyer.
It may be warranted here to explain Imam Abu Ḥaneefah’s position regarding singular (âḥâd) hadiths:
Âḥâd hadiths are narrations that have been transmitted by people whose number does not reach that of mutawâtir reports. Mutawâtir hadiths are narrations that have been transmitted by such a large number of people that they could not possibly have all agreed upon a lie.
Because of the spread of fabricated hadiths in Iraq during his time, Imam Abu Ḥaneefah stipulated a number of stringent conditions for accepting an âḥâd report (as opposed to mutawâtir and mash-hoor). Firstly: It should not be opposed by its narrator. Secondly: It should not pertain to a matter that is widespread and unavoidable (‘umoom al-balwâ). Thirdly: It should not oppose sound qiyâs, and its narrator must be one of the jurists. An âḥâd hadith that opposes sound qiyâs is not accepted when this qiyâs is based on an ‘illah that is established though a stronger report than the âḥâd report, and also when this ‘illah is definitely present in the case addressed by the âḥâd report. [Information taken from the book al-Fikr as-Sâmi fee Tareekh al-Fikr al-Islâmi by Muhammad ibn al-Ḥasan al-Ḥajjâwi.] When these conditions are fulfilled in an âḥâd hadith, it is accepted and preferred over qiyâs, even if its chain of narration is weak.
Regarding this, Ibn al-Qayyim states in his book I‘lâm al-Muwaqqi‘een: “The companions of Abu Ḥaneefah – may Allah bestow mercy upon him – unanimously agree that Abu Ḥaneefah’s madh-hab holds that a weak hadith is given preference over qiyâs.”
The majority gave precedence to the sound âḥâd report over qiyâs. Usually there is a way to reconcile between sound qiyâs and the implication of the hadith. This sometimes means reconsidering one’s interpretation of the hadith.

Similarly, every act of tadlees ⁸²⁸ the buyer did not know of; they have the right to return the commodity. For instance, putting rouge on a bondmaid’s face, or coloring her hair black or curling it. ⁸²⁹ [Similar to this is] holding back water and then suddenly letting it flow to turn a hand mill while exhibiting it to the buyer. ⁸³⁰

وَكَذٰلِكَ كَلُّ مُدَلَّسٍ لَمْ يَعْلَمْ تَدْلِيْسَهُ، لَهُ رَدُّهُ، كَجَارِيَةٍ حَمَّرَ وَجْهَهَا، أَوْ سَوَّدَ شَعَرَهَا، أَوْ جَعَّدَهُ، أَوْ رَحًى ضَمَّرَ الْمَاءَ وَأَرْسَلَهُ عَلَيْهَا عِنْدَ عَرْضِهَا عَلَى الْمُشْتَرِيْ.

This applies also when one finds out that a [good] quality has been falsely attributed to the sold object to raise its price, such as attributing the ability to write or a craft to a slave, or fast and stable movement to a riding animal, or claiming that the leopard is a hunter or the bird is a singer, and so on.

وَكَذٰلِكَ لَوْ وَصَفَ الْمَبِيْعَ بِصِفَةٍ يَزِيْدُ بِهَا فِيْ ثَمَنِهِ، فَلَمْ يَجِدْهَا فِيْهِ، كَصِنَاعَةٍ فِي الْعَبْدِ أَوْ كِتَابَةٍ، أَوْ أَنَّ الدَّابَةَ هِمْلاَجَةٌ، وَالْفَهْدَ صَيُوْدٌ أَوْ مُعَلَّمٌ، أَوْ أَنَّ الطَّيْرَ مُصَوِّتٌ وَنَحْوَ هَذَا.

[The Option to Cancel Due to

وَلَوْ أَخْبَرَهُ بِثَمَنِ الْمَبِيْعِ،

828. Ibn Qudâmah mentions in his other book al-Mughni: “The meaning of tadlees is to hide a defect from the purchaser by not telling him or her of the defect despite knowing of it, or by intentionally covering it [actively or passively]; both are acts of deception, which is haram.”
. Contemporary examples of tadlees:

. Changing the odometer of a car to show lower mileage.

. Sticking brand-name tags onto a generic commodity.

829. Because these were considered to be signs of beauty.

830. In other words, to cause the restrained water to gush forth and make the hand mill’s axis rotate faster than it would in real usage.

Disagreement Over the Price]
If the seller raises the price of the sold object, ⁸³¹ the buyer can get back the extra payment in excess of the price and its percentage of the profit, if it was murâbaḥah [a sale with profit/cost-plus sale]. ⁸³²

فَزَادَ عَلَيْهِ، رَجَعَ عَلَيْهِ بِالزِّيَادَةِ، وَحَظِّهَا مِنَ الرِّبْحِ، إِنْ كَانَ مُرَابَحَةً. وَإِنْ بَانَ أَنَّهُ غَلِطَ عَلَى نَفْسِهِ، خُيِّرَ الْمُشْتَرِيْ بَيْنَ رَدِّهِ أوَإِعْطَائِهِ مَا غَلِطَ بِهِ.

831. In murâbaḥah sales, the seller buys an item and then sells it to the buyer with a markup (a percentage based on the price the seller paid for the item). The buyer trusts the seller to correctly state the actual price that he or she paid. For example, if the buyer agrees to give the seller $1 on every $10 of the original price, and the original price was $70, then the buyer will get the merchandise for $77 ($70 + a profit of $7).

832. So in the previous example, if the seller actually bought the item for $60 (not $70), he or she should return (to the buyer) the extra $10 that was added to the price, as well as $1 more, which is the profit on that $10. (Because the buyer paid $77 instead of the $66 that he or she should have paid, so $11 should be returned.)

The option to cancel due to inequity (khiyâr al-ghabn)

خيار الغبن

If there was no lying involved, yet the seller charged the buyer an exorbitant price, such as a price much more than the commodity’s worth, then this is a case of ghabn, or inequity, which is either:

1) Minor, and that is inconsequential by agreement, or:

2) Out of the ordinary.

According to the stronger position, the distinction between the two is judged by people’s customs and standards.
Keep in mind that there are cases of inequity that are indicated in the Sunnah, such as interception of goods, provocation, various forms of cheating, and so on. In all these cases, the buyer has an option to cancel.
The inequity discussed here is when no deception or cheating was involved, yet the seller overcharged the buyer. Does that give the buyer the option to cancel?
The answer is controversial, and the majority, including (H, +M, +S) indicated that it does not. They argued that the sale is final by

If it is proven that the seller has mistakenly undercharged for the commodity, ⁸³³ the seller gives the buyer the choice of either returning the item or giving the additional amount.

If the buyer finds out that the commodity was originally bought for a deferred payment, and he or she was not

وَإِنْ بَانَ أَنَّهُ مُؤَجَّلٌ وَلَمْ يُخْبِرْهُ بِتَأْجِيْلِهِ فَلَهُ الْخِيَارُ بَيْنَ رَدِّهِ وَإِمْسَاكِهِ.

default, and since it did not involve any form of cheating, it is the buyer’s fault for hastily finalizing the transaction. However, (A, +M2, +s) gave the cancellation option to the inexperienced or naïve (mustarsil) trader. Finally, (h, -m) gave the cancellation option to all.
This is one example of the case where there is no clear textual evidence, and the jurists of the time have some liberty to select what is most suitable for the society.

833. The seller mistakenly told the buyer a lower price than he or she actually paid for the commodity. For example, the seller bought the commodity for $70 but mistakenly told the buyer that the purchase price was $50. They agreed on a 50% profit, so the buyer took it for $75 (50 + 25) instead of the $105 (70 + 35) that it should have been. If the seller proved that the purchase price was actually $70, then the buyer would have to either return the commodity or pay the seller $30 (105-75).

Notice that this is applicable to the murâbahah sales (cost-plus sales), where the price is determined by adding an agreed upon percentage to the original price for which the seller bought the commodity. These sales are not popular in our times.

told that, then the buyer has the choice of either returning or keeping it. ⁸³⁴

If they [later] differ regarding the [agreed-upon] price, ⁸³⁵ then each should

وَإِنِ اخْتَلَفَ الْبَيِّعَانِ فِيْ قَدْرِ الثَّمَنِ، تَحَالَفَا وَلِكُلِّ وَاحِدٍ مِنْهُمَا

834. This is when someone buys an item for a deferred payment and then sells it to someone else as a murâbaḥah sale without explaining that it was bought via a deferred payment sale. Note that the buyer in murâbaḥah is usually inexperienced and asks the seller how much he or she originally bought the merchandise for; then they agree on a percentage of profit, which the buyer pays the seller on the original price. The buyer has the option to cancel in this case, since the deferred price is usually higher than the cash price.

835. As in deferred payment transactions, when the seller says that they agreed on $6, but the buyer insists that they agreed on $5. In this case, the commodity may be present, absent, or it may have perished. 1) If the commodity is present/extant, the seller will be asked first to make his or her claim, and the buyer will either accept or make another claim. If they both reject each other’s claims, they proceed to annulment because the Messenger of Allah (SA) said:

“If the two parties in a sale dispute (as to what they had agreed on), and there is no proof, and the commodity is present, then either the statement of the seller will take precedence, or they may annul the transaction.” (Ma – from Ibn Mas‘ood)

إِذَا اخْتَلَفَ الْبَيِّعَانِ وَلَيْسَ بَيْنَهُمَا بَيِّنَةٌ وَالْبَيْعُ قَائِمٌ بِعَيْنِهِ، فَالْقَوْلُ مَا قَالَ الْبَائِعُ أَوْ يَتَرَادَّانِ الْبَيْع.

2) If the commodity is absent or has perished, they will both take oaths. If they disagree, then valuation of the commodity will determine the price. If they disagree on the qualities of the commodity, making valuation impossible, then the final say will be the buyer’s because the commodity was in his or her possession and liability at the time it perished. If the buyer claimed they agreed on $15 and the seller claimed $20, the onus will be on the seller to prove that he or she is entitled to that extra $5. In the previous case of disagreement regarding a present/extant

take an oath, and each has the right to annul the transaction or accept the account of the other party.

الْفَسْخُ، إِلاَّ أَنْ يَرْضَى بِمَا قَالَ صَاحِبُهُ.

commodity, we departed from this reasoning because of the hadith giving the seller precedence.
There is much disagreement in these matters, but here are some guiding principles:

· The proof is sought first.

· Corroborative evidence (less than decisive proof) is also admissible in these cases.

· If there is no proof, and the disagreement is over conditions in the sales contract, the default is the lack of conditions and lack of deferment, so precedence is given to the one who denies additional conditions.

. If the disagreement is over the price, the breakdown above represents the chosen positions in the Ḥanbali madh-hab.

Cancellation Options Continued

( Page : no 75)

Book of Zakat

Cancellation Options Continued

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Cancellation Options Continued