Is it permissible to separate related persons of unmarriageable kinship in a sale?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
It is not permissible to differentiate in a sale between any person sharing an unmarriageable kinship (*mahram*). This view is held by Abu Hanifa. The primary evidence relies on the narration from Ali, peace be upon him, stating that the Messenger of Allah, peace and blessings be upon him, commanded him to take back two sold brothers whom he had separated and not sell them except together. Furthermore, it is narrated from Abu Musa that the Prophet, peace be upon him, cursed whoever separated a mother from her child, or a brother from his brother. The reasoning is that there exists an unmarriageable kinship between them, prohibiting separation in sale, analogous to a child and his mother. The case of cousins (*ibn al-`amm*) is distinguished because no unmarriageable kinship exists between them.
Supporting text
Imam Malik permits separation unless it is between a mother and her child, basing this on the Hadith stating, "Whoever separates between a mother and her child, Allah will separate him from those he loves on the Day of Resurrection." He inferred that this specificity implies permissibility in other cases. Imam Al-Shafi'i prohibits separation only between parents and their offspring, even if they are lower in lineage, arguing that kinship which does not prevent retaliation in kind or testimony does not prevent separation in sale, unlike cousins.