What is the ruling on a sale where separation of related persons occurs before the age of puberty?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If separation between related persons occurs before puberty, the sale is void. This is supported by the Hadith of Ali, where the Prophet, peace be upon him, commanded him to take back the sold individuals. If the sale had been binding, their return would have been impossible. Moreover, it is related in the Sunan of Abu Dawud that when Ali separated a mother from her child, the Prophet, peace be upon him, forbade him and ordered the return of the sold item. The sale is considered void because it is a prohibited sale due to an element within it, similar to the sale of wine.
Supporting text
Al-Shafi'i holds this ruling for those under the age of seven. Abu Hanifa maintains that the sale is valid because the prohibition is related to an external matter—the harm resulting from the separation—and therefore does not invalidate the sale itself, similar to selling during the call to prayer. The limitation to the age of seven is rejected because the generality of the prohibition forbids such specific limitation without evidence.