Is a sale void if it results in the separation of a mother and her child?
General Chapter
Al-Mughni
Book of Jihad
Primary text
A sale that results in the separation of a mother and her child is void (*fasid*). This is the position of Al-Shafi'i. The evidence is the report from Ali (may Allah be pleased with him) whom the Messenger of Allah (peace be upon him) forbade from separating two brothers, commanded him to return the slave, and annulled the sale.
Supporting text
Abu Hanifa holds that the sale is valid because the prohibition pertains to an issue outside the object of the contract, similar to a sale during the call to prayer. This is rejected because the prohibition is due to the harm inflicted upon the sold item, which is an attribute inherent to the transaction.