Fath al-Rabbani

Benefits: … The clearest meaning of these ahadith is that when a person buys an animal whose milk has been withheld, he is given the option to return the transaction within three days. However, in the case of returning, it is necessary for him to return, along with the animal, one sa‘ (a specific measure) of dates to the owner; this is, in fact, compensation for the withheld milk. This is the opinion of the majority of scholars, including Imam Shafi‘i and Imam Ahmad. Among the Hanafis, Zufar agreed with the majority, but he gives the option between one sa‘ of dates and half a sa‘ of wheat. The general Hanafis have allowed the annulment of the sale due to this defect, and in light of clear analogy (qiyas jali), they have refrained from accepting the one sa‘ of dates mentioned in this hadith. For this purpose, sometimes they have said that Sayyiduna Abu Hurayrah radi Allahu anhu was not a jurist (faqih), therefore, his narration that goes against clear analogy will not be accepted. Our submission is that Sayyiduna Abu Hurayrah radi Allahu anhu was a great memorizer of ahadith, and this very quality is befitting of a jurist (faqih). Moreover, Sayyiduna Abdullah ibn Mas‘ud radi Allahu anhu, whom the Hanafis themselves consider an imam of jurisprudence and ijtihad, also narrated this hadith. The greatest mistake of the Hanafis in this matter is that they formulate laws based on some clear cases, and then, in light of those laws, they begin to seek various pretexts to reject the textual evidences of the Shari‘ah. An example of this has been mentioned here. Our view is that all laws and regulations are subject to the textual evidences of the Shari‘ah; laws should be made in light of the Qur’an and Hadith, and after looking at the verses and ahadith, specific things will be exempted from those laws. The law given by the Shari‘ah is that the price should be determined by looking at the item, but giving one sa‘ of dates as compensation for withheld milk is also a legal ruling of the Shari‘ah. Therefore, in this specific case, the price of five or ten kilos of milk that was withheld will not be paid; rather, only one sa‘ of dates will be given. The weight of one sa‘ is two kilograms and one hundred grams.