Is the exception of a specific animal valid when selling a herd?
Chapter on Selling Assets and Fruits
Al-Mughni
Book of Sales
Primary text
The sale of a herd where a specific, identified animal is excepted is valid. This is the position of the majority of scholars. The ruling is established based on prophetic prohibition against ambiguity unless the exception is known ('al-thunya') and prohibition against uncertain transactions (gharar). The reasoning is that the sold item cannot be unknowable, nor can the excepted item be unknowable.
Supporting text
Imam Malik permits excepting an unspecific animal, allowing one animal to be chosen later from the herd. He also permits excepting the fruit of specific date palms when selling the entire garden's fruit.