CAVEAT EMPTOR VERSUS KHIYAR AL-'AYB

Abstract

It is an obligation in any commercial (sale-purchase) transaction thatprior to entering into an agreement, the seller is to allow the buyer toinspect the goods, in order to ensure that they are free from any unknowndefect. Such an obligation on the seller is known in common law ascaveat emptor.' The doctrine, in other words, gives the buyer a right todetermine whether the goods to be purchased are free from any defectbefore the actual agreement is completed, so as to protect him from anyfuture risk from a defective product. Thus, this doctrine implies that thebuyer, after such inspection or investigation of the fitness of such goods,will shoulder the responsibility of any risk on the goods after the conclusionof the said sale and purchase agreement. Jowitt's Dictionary ofEnglish Law explains that a buyer must be on the alert, for he has no rightto remain in ignorance of the fact that what he is buying belongs to someoneother than the vendor and that any buyer who fails to investigate thevendor's title does so at his own risk.However, caveat emptor does not imply any obligation on the seller topoint out a defect in the goods to be sold.3 He is, therefore, only obligedto allow the buyer or purchaser to investigate the goods himself andnothing more. The buyer, in h s case, can decide before any sale andpurchase agreement whether to carry out such an inspection on the goodsto be sold. The buyer is then at liberty whether to exercise this means ofprotection against any defective goods! Islamic law also provides sucha safeguard against any defective products or goods in a sale and purchaseagreement. The Islamic doctrine which allows such safeguard iscalled in Islamic commercial terminology khiyur al-'ayh. Thus, underIslamic commercial law, the seller, in a sale and purchase agreement, is ...