CAVEAT EMPTOR VERSUS KHIYAR AL-'AYB

Abstract

It is an obligation in any commercial (sale-purchase) transaction that
prior to entering into an agreement, the seller is to allow the buyer to
inspect the goods, in order to ensure that they are free from any unknown
defect. Such an obligation on the seller is known in common law as
caveat emptor.' The doctrine, in other words, gives the buyer a right to
determine whether the goods to be purchased are free from any defect
before the actual agreement is completed, so as to protect him from any
future risk from a defective product. Thus, this doctrine implies that the
buyer, after such inspection or investigation of the fitness of such goods,
will shoulder the responsibility of any risk on the goods after the conclusion
of the said sale and purchase agreement. Jowitt's Dictionary of
English Law explains that a buyer must be on the alert, for he has no right
to remain in ignorance of the fact that what he is buying belongs to someone
other than the vendor and that any buyer who fails to investigate the
vendor's title does so at his own risk.
However, caveat emptor does not imply any obligation on the seller to
point out a defect in the goods to be sold.3 He is, therefore, only obliged
to allow the buyer or purchaser to investigate the goods himself and
nothing more. The buyer, in h s case, can decide before any sale and
purchase agreement whether to carry out such an inspection on the goods
to be sold. The buyer is then at liberty whether to exercise this means of
protection against any defective goods! Islamic law also provides such
a safeguard against any defective products or goods in a sale and purchase
agreement. The Islamic doctrine which allows such safeguard is
called in Islamic commercial terminology khiyur al-'ayh. Thus, under
Islamic commercial law, the seller, in a sale and purchase agreement, is ...