Is it necessary for the seller to declare all defects and faults when selling an item, or is it the buyer’s responsibility to discover them?
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 to be truthful and point out the specific defect if he has knowledge of it; otherwise he 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 [when purchasing from me]: ‘This is what Muhammad, Messenger of Allah (Allah bless him & give him peace), has purchased from al-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 with him) as saying, “It is not lawful for one to sell goods knowing that there is a defect in them without mentioning it.” (ibid)
Sayyiduna Hakim ibn Hizam (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said, “The seller and the buyer have the option [to conclude the sale] as long as they have not separated. If they both speak the truth and make things 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 sells defective 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 unlawful to 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 to point 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 commercial transactions, 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 sale but 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 is for the fixed price, or return it and get his money back. 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 the seller 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
[Mufti] Muhammad ibn Adam
Leicester , UK