Question:
Assalamualaikum Dato Seri Mufti. Yesterday, I bought a durian at a discounted price. Before buying it, the seller informed me that the durian has been eaten by squirrels. Since the seller said that he is willing to sell it to me at a discounted price I agreed to buy it. My question is, is it permissible for me to return the durian for I regret buying it in the first place? Hope for an explanation. Thank you.
Answer:
Waalaikumussalam wrt.wbt.
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
The main concept set of trade in Islam is mutual consent from both the seller and the buyer for it to be valid. This is stated in the Quran and hadith of the Prophet PBUH:
يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةً عَن تَرَاضٍ مِّنكُمْ
“O you who have believed, do not consume one another's wealth unjustly but only [in lawful] business by mutual consent.”
Surah al-Nisa’ (29)
Imam al-Qurtubi explained the word ‘bathil’ (unjustly) means through unjust means such as usury, gambling, violation of rights and other prohibited means except trade or business where both seller and buyer are in agreement. (See: Jami’ li Ahkam al-Quran, 5/151)
The same is stated in a hadith narrated by Dawud bin Salih al-Madani from his father, who said he heard from Abu Sa’id al-Khudri RA, who said the Prophet PBUH said:
إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ
“Transactions may only be done by mutual consent.”
Sunan Ibn Majah (2185)
Permissible trade and in accordance with syarak will lead to the implication of changing of ownership with the mutual consent of the buyer and seller. This is considered as muktabar (accepted). (See Masabih al-Tanwir 'ala Sahih al-Jami' al-Saghir, 1/425)
Imam al-Son’ani said, consent is something that is unobservable. Hence, it is determined through what is visible such as words that showcased one’s consent and others. (See: Subul al-Salam, 1/2)
Answering the above question, if the seller has already told the buyer regarding the defect of the goods that he is selling without hiding anything, then the buyer has already agreed to buy it, then the buyer no longer has the right for khiyar (refund) after the purchase. The reason is, the buyer has already given his consent for the defect of the goods. In an Islamic legal maxim:
الرِّضَا بِالشَّيْءِ رِضًا بِمَا يَتَوَلَّدُ مِنْهُ
“Consent on something is consent on anything that comes from it.”
Hence, those who give their consent on something or instruction, then it means that they gave their consent on anything that is a direct consequence from it. (See: al-Qawaid al-Fiqhiyyah wa Tatbiqatuha fi al-Mazahib al-Arbaah, 2/727)
Conclusion
To conclude, trade is based on mutual consent from both the seller and buyer. A person involved in selling or buying any goods should do so with his full consent and freedom of choice. As for the above issue, if the seller has explained the defect of the good and the buyer has agreed to buy it despite knowing its defect then, he no longer reserves the right of khiyar after the purchase. The reason is, the act of buying it is a sign of consent for the defect that has already been explained by the seller, thus, abrogating his rights of khiyar for the buyer.
May this explanation give us understanding in business and trade according to the true Islamic teachings. Amin.