Explanation of the Book of Sales-11
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The Shaykh :" And from 'Ali ibn Abi Talib (may Allah be pleased with him), who said: Musnad Ahmad 1045Hasan because of corroborating evidence; this is a Da'if isnad] (Darussalam) Ahmad narrated it, and its narrators are trustworthy. Ibn Khuzaymah, Ibn al-Jarud, Ibn Hibban, al-Hakim, al-Tabarani, and Ibn al-Qattan authenticated it " :
The subject of these two hadiths is the same: whether it is permissible to separate relatives in a sale or not. In these hadiths, the Messenger of Allah (peace and blessings be upon him) says:Jami` at-Tirmidhi 1566Hasan (Darussalam) This is a warning, and a warning indicates prohibition, and that this is among the major sins.
An example of this is: a man has a female slave, and she has a slave child. How can her child be a slave? By marrying her to a slave, or to a free man who knows that she is a slave. If he marries her to a slave, are her children slaves to the master of the slave or to the master of the female slave? They are slaves to the master of the female slave.
And if he marries her to a free man and informs him that she is a slave, then likewise her children will be slaves to her master.
The point is that if he has a mother and her child, both of whom are slaves, and he sells the mother without the child, then that is not permissible, and the sale is forbidden; indeed, it is among the major sins.
But does the sale take place as valid? The answer is: No, the sale takes place as defective, and he must return it, as indicated by the hadith of 'Ali (may Allah be pleased with him). This is also the implication of the rule we mentioned earlier, which is: " If the prohibition returns to the contract itself or the act of worship itself, then it cannot be valid due to contradiction ", because the prohibition necessitates invalidity. How can what is prohibited be valid while the Lawgiver prohibits it?!
Now, among the benefits of the two hadiths is the prohibition of separating relatives in a sale.
Among the benefits also is that this is among the major sins, due to the presence of a warning regarding it. The major sins are: " Everything that has a specific warning, whether this warning is with the Fire, or anger, or a curse, or disavowal from it, or denial of faith, or denial of Islam, or otherwise. And likewise, everything that has a specific punishment from the Shari'ah in this world is among the major sins ", such as zina and sodomy, and others. Everything that has a specific punishment in this world or a warning in the Hereafter, of any type of warning, is among the major sins. And what is not so, but only has a prohibition or forbiddance or denial of permissibility, then that is not among the major sins.
Now, is the aunt and the maternal aunt analogous to the mother?
The student: No.
The Shaykh : Yes, if we look at the hadith of 'Ali, we say that the aunt and the maternal aunt are analogous, because in it also—meaning the hadith of 'Ali—there is the prohibition of separating two brothers.
And the scholars derived from this and the previous one a rule and said: " It is not permissible to separate relatives in a sale ".
Now, if we ask: What is the criterion? The criterion is that if it were possible for one of them to be male, it would not be permissible for the other to marry him due to kinship, then it is not permissible to separate them. So, the aunt and her nephew, it is not permissible to separate them, because marriage between them is not permissible. And the paternal uncle and his nephew, hmm?
The student: It is permissible.
The Shaykh : It is permissible to separate them. Why? Because if one of them were female, the other could marry her, so it would be permissible for the other to marry her.
A mother and her daughter through breastfeeding? Hmm?
The student: It is permissible.
The Shaykh : It is permissible, because the cause is not kinship but breastfeeding, clear? Now, what is the rule? We return to the rule and say: " Every two slaves, if it were possible for one of them to be male, and it would not be permissible for the other to marry him due to kinship, then it is not permissible to separate them ". Now, if separation occurs, the obligatory thing is to return the sale, as indicated by the hadith of 'Ali ibn Abi Talib (may Allah be pleased with him).
The Messenger of Allah (ﷺ) told me to sell two slaves who were brothers, so I sold them and separated them, I mentioned that to the Prophet (ﷺ) and he said: `Go and take them back, and only sell them together
أمرني رسول الله صلى الله عليه وسلم أن أبيع غلامين أخوين فبعتهما ففرَّقت بينهما ، فذكرت ذلك للنبي صلى الله عليه وسلم فقال : أدركهما فارتجعهما ، ولا تبعهما إلا جميعاًThe subject of these two hadiths is the same: whether it is permissible to separate relatives in a sale or not. In these hadiths, the Messenger of Allah (peace and blessings be upon him) says:
Whoever separates between a mother and her child, then Allah will separate between him and his beloved
من فرَّق بين والدة وولدها فرق الله بينه وبين أحبتهAn example of this is: a man has a female slave, and she has a slave child. How can her child be a slave? By marrying her to a slave, or to a free man who knows that she is a slave. If he marries her to a slave, are her children slaves to the master of the slave or to the master of the female slave? They are slaves to the master of the female slave.
And if he marries her to a free man and informs him that she is a slave, then likewise her children will be slaves to her master.
The point is that if he has a mother and her child, both of whom are slaves, and he sells the mother without the child, then that is not permissible, and the sale is forbidden; indeed, it is among the major sins.
But does the sale take place as valid? The answer is: No, the sale takes place as defective, and he must return it, as indicated by the hadith of 'Ali (may Allah be pleased with him). This is also the implication of the rule we mentioned earlier, which is: " If the prohibition returns to the contract itself or the act of worship itself, then it cannot be valid due to contradiction ", because the prohibition necessitates invalidity. How can what is prohibited be valid while the Lawgiver prohibits it?!
Now, among the benefits of the two hadiths is the prohibition of separating relatives in a sale.
Among the benefits also is that this is among the major sins, due to the presence of a warning regarding it. The major sins are: " Everything that has a specific warning, whether this warning is with the Fire, or anger, or a curse, or disavowal from it, or denial of faith, or denial of Islam, or otherwise. And likewise, everything that has a specific punishment from the Shari'ah in this world is among the major sins ", such as zina and sodomy, and others. Everything that has a specific punishment in this world or a warning in the Hereafter, of any type of warning, is among the major sins. And what is not so, but only has a prohibition or forbiddance or denial of permissibility, then that is not among the major sins.
Now, is the aunt and the maternal aunt analogous to the mother?
The student: No.
The Shaykh : Yes, if we look at the hadith of 'Ali, we say that the aunt and the maternal aunt are analogous, because in it also—meaning the hadith of 'Ali—there is the prohibition of separating two brothers.
And the scholars derived from this and the previous one a rule and said: " It is not permissible to separate relatives in a sale ".
Now, if we ask: What is the criterion? The criterion is that if it were possible for one of them to be male, it would not be permissible for the other to marry him due to kinship, then it is not permissible to separate them. So, the aunt and her nephew, it is not permissible to separate them, because marriage between them is not permissible. And the paternal uncle and his nephew, hmm?
The student: It is permissible.
The Shaykh : It is permissible to separate them. Why? Because if one of them were female, the other could marry her, so it would be permissible for the other to marry her.
A mother and her daughter through breastfeeding? Hmm?
The student: It is permissible.
The Shaykh : It is permissible, because the cause is not kinship but breastfeeding, clear? Now, what is the rule? We return to the rule and say: " Every two slaves, if it were possible for one of them to be male, and it would not be permissible for the other to marry him due to kinship, then it is not permissible to separate them ". Now, if separation occurs, the obligatory thing is to return the sale, as indicated by the hadith of 'Ali ibn Abi Talib (may Allah be pleased with him).