A purchafer,
di(covering a
defefl in the
article pur-
chafed, is at
liberty to return
it to the
feller;
fold, although it be not complete before feizin ;— but the prefeat cafe
proceeds on the fuppoftfion of poffeffion having been taken. If, however,
the fupervenient deeds of fale or gift, on the- part of the
purchafer, be rendered null, (as if the ficondary'purchafer fhould
undo the bargain on account of the difcovery of a defeat,— or, as if the
purchafer him-felf fhould recede from his gift,) in this cafe the option
of infpeftion flail remains.— This is from ShimJh-al-Ayma. It is related,
as ;an opinion of Aboo Toofaf, that an option of infpeftion once
annulled cannot again revive, any-more than ^conditional option; and
Kadoone has adopted .this doctrine. ,
C II A P- IV.
Of Option from DefeB.
I f a perfen purchafe and take poffeflion of an article, and fliould
afterwards difcover it to have been defedtive at the time of fale, it is
at his option either to take it for the full price, or to reje£t i t ; Jbecaufe
one requifite, in an unconditional contract [of fale,] is that the fub-
jedt o f it be free from defedt;— When, therefore, it proves otherwife,
the purchafer has no option; for if the contradit were obligatory upon
him, without his will, it would be injurious to him. He is not,
however, at liberty to retain the article, and exadt a compenfation,
on account of the defedt, from the feller; becaufe, in a contradt of
fale, no part of the price is oppofed to the quality of the article;— and
alfo, becaufe the feller does not confent to be djvefted of the property
for
for a lefs price than that which he ftipulates r— if, therefore, the
purchafer were to retain the defedtive article, and exadt a compenfa-
tion from the feller on account of the defea, it would be injurious to
the latter:— but it is.poflible to obviate the injury to the purchafer
without entailing an injury on the feller, by permitting him either to
j-etain the article, if he approve of it with the defedt, or to rejedt it. >
If, however, the purchafer, at the time of fale, or of taking poflef-
fion, be aware of the defea, and neverthelefs knowingly and wilfully
make the. purchafe, or take pofleflion, no option remains to him; becaufe
when he thus purchases or takes pofleflion of the article,, it is
unlefs he was-
aware of the
defeél beforehand.
W hatever may he a caufe of diminifhing the price amongft
merchants is confidered as a defea ;. becaufe injury is oecafioned by fn cia ti y n
deficiency in point of value ; and deficiency in point of v a lu e occafions
deficiency in p r ic e ; and the mode of afcertaining this is - by confuting
merchants who are pradtifed in. eftimating the value of
articles.
A disposition to abfcond, or to make urine-upon carpets, or to
commit theft, are defeds in children during their nonage, but not drenaffcathe-
after they attain to the age of maturity.- Ifr therefore, any of theie during in-
defeds appear in an-infant Have during childhood whilft in the hands,
of the felleF, and afterwards appear in him during childhood whilft in turit/.
the hands of the purchafer, he [the purchafer] is in that cafe at liberty
to return him to the feller, in virtue of option frorii defect; becaufe
this is the lame defea that exifted whilft in the pofleflion of the feller^
If, on the other hand,, any of thefe defeas fhould occur in him, jui-
the purchafer’S' hands, after he attains to maturity, the purchafer is
not at liberty to return him by option from defedt', becaufe this defea
is different from that which appeared during childhood in the hands of
the feller, fince thefe effeas proceed from different caufes in the periods
of childhood and maturity; for the making of urine upon a
r carpet