Explanation of the author's statement: "And its opposite is fat and the fetus"
Machine translationRead the Arabic original
The Shaykh : "And its opposite" means the opposite of the exception of the extremities. The head, the rump, and the joints are valid to be excepted. Regarding fat, the author says "And its opposite is fat and the fetus". Therefore, it is not valid to except fat when selling an animal, because it is unknown. No matter what, the fat is unknown; it is mixed with the meat, and it is not possible to know it except after the animal is slaughtered, scraped, and separated. As long as it is in that state, it is not possible to know it. For this reason, if one says, "I sold you this sheep except for its fat," the exception is not valid. And if the exception is not valid, what happens? The sale is not valid. All right.
And "the fetus" means that one also intends to except the fetus. Excepting the fetus is not valid, such as if one sells a pregnant sheep and says, "I sold you this pregnant sheep except for its fetus." This is because the seller knows that it is a good sheep and its offspring will be good, so he says, "I sold you the sheep except for its fetus." The exception is not valid. Why? Because the fetus is unknown, so it is not valid to except it. This is the madhhab (school of jurisprudence), and it is one of the two opinions in this issue. The second opinion is that excepting the fetus is valid, because the fetus is a separate part. If you except the fetus, it is as if I sold you a sheep that is not pregnant, with no fetus in it. If someone says, "This contradicts the prohibition of the Prophet (peace and blessings be upon him) against selling the fetus," we say, no, it does not contradict it. Far be it from us to say something that contradicts the saying of the Messenger (peace and blessings be upon him) while knowing it. But the difference is that selling the fetus is a sale involving exchange, where each party haggles with the other. As for the exception, it is a retention, because the seller did not sell anything and the buyer did not sell anything. The most that is involved is that the seller, what did he do? He retained the fetus. Retention means not transferring ownership of the fetus, and this does not harm the buyer in any way. So the correct view is that excepting the fetus is permissible. If someone says, "The fetus could be two or three," we say, that does not matter, because there is no exchange involved. The most that is there is that it is as if he sold him, what? An animal that is not pregnant. And this, I mean excepting the fetus, happens often in horses. It happens in horses, and it also happens in cows, and in camels, and it may happen in sheep. For example, this mother sheep is a high producer, with a lot of milk. In horses, it is fast in running, and he wants to take from its offspring. So the correct view is that excepting the fetus is permissible. All right.
If he excepted a specific thing from it, saying, "I sold you this sheep except for a pound of its meat," is that permissible? The jurists say it is not permissible, because the pound is known and the meat is unknown, and excepting the known from the unknown makes it unknown. But the correct view is that if it is known that this excepted amount is small relative to the rest of the animal, then the sale is valid. A pound of meat, and the animal is a hundred pounds, there is no harm and there is no gharar (excessive uncertainty). But if he said, "I sold you this sheep except for thirty pounds of meat," and the meat might be thirty pounds or less, then the exception is not valid because it cannot be fulfilled. However, if it can be fulfilled—a pound of meat can be a piece of the thigh or a piece of the upper arm, and the intended amount is obtained—then we say that if he excepted a specific thing that can be identified and obtained, there is no harm with it. All right. If he excepted the liver, saying, "I sold you this sheep except for its liver."
The questioner : It is valid.
The Shaykh : The madhhab (school of jurisprudence) says it is not valid, and the correct view is that it is valid, because this exception is a retention. If he says, "Perhaps the liver is large or small," we say, yes, that is a possibility. But this is a retention, and it is a separate, distinct, known part. All right.
And "the fetus" means that one also intends to except the fetus. Excepting the fetus is not valid, such as if one sells a pregnant sheep and says, "I sold you this pregnant sheep except for its fetus." This is because the seller knows that it is a good sheep and its offspring will be good, so he says, "I sold you the sheep except for its fetus." The exception is not valid. Why? Because the fetus is unknown, so it is not valid to except it. This is the madhhab (school of jurisprudence), and it is one of the two opinions in this issue. The second opinion is that excepting the fetus is valid, because the fetus is a separate part. If you except the fetus, it is as if I sold you a sheep that is not pregnant, with no fetus in it. If someone says, "This contradicts the prohibition of the Prophet (peace and blessings be upon him) against selling the fetus," we say, no, it does not contradict it. Far be it from us to say something that contradicts the saying of the Messenger (peace and blessings be upon him) while knowing it. But the difference is that selling the fetus is a sale involving exchange, where each party haggles with the other. As for the exception, it is a retention, because the seller did not sell anything and the buyer did not sell anything. The most that is involved is that the seller, what did he do? He retained the fetus. Retention means not transferring ownership of the fetus, and this does not harm the buyer in any way. So the correct view is that excepting the fetus is permissible. If someone says, "The fetus could be two or three," we say, that does not matter, because there is no exchange involved. The most that is there is that it is as if he sold him, what? An animal that is not pregnant. And this, I mean excepting the fetus, happens often in horses. It happens in horses, and it also happens in cows, and in camels, and it may happen in sheep. For example, this mother sheep is a high producer, with a lot of milk. In horses, it is fast in running, and he wants to take from its offspring. So the correct view is that excepting the fetus is permissible. All right.
If he excepted a specific thing from it, saying, "I sold you this sheep except for a pound of its meat," is that permissible? The jurists say it is not permissible, because the pound is known and the meat is unknown, and excepting the known from the unknown makes it unknown. But the correct view is that if it is known that this excepted amount is small relative to the rest of the animal, then the sale is valid. A pound of meat, and the animal is a hundred pounds, there is no harm and there is no gharar (excessive uncertainty). But if he said, "I sold you this sheep except for thirty pounds of meat," and the meat might be thirty pounds or less, then the exception is not valid because it cannot be fulfilled. However, if it can be fulfilled—a pound of meat can be a piece of the thigh or a piece of the upper arm, and the intended amount is obtained—then we say that if he excepted a specific thing that can be identified and obtained, there is no harm with it. All right. If he excepted the liver, saying, "I sold you this sheep except for its liver."
The questioner : It is valid.
The Shaykh : The madhhab (school of jurisprudence) says it is not valid, and the correct view is that it is valid, because this exception is a retention. If he says, "Perhaps the liver is large or small," we say, yes, that is a possibility. But this is a retention, and it is a separate, distinct, known part. All right.