The second view is that excluding the fetus is valid, because the fetus is a separable part. Thus, when you exclude the fetus, it is as though I had sold you a non-pregnant ewe.

If someone were to say, “Does this not contradict the Prophet’s prohibition of selling a fetus (1)?” we reply: No, it does not contradict it. Far be it from us to knowingly advance a view that contradicts the statement of the Messenger, peace and blessings be upon him. The difference, however, is that selling a fetus is a compensatory transaction, in which each party seeks to obtain the better deal from the other; whereas an exclusion is a retention. The seller has not sold anything, nor has the buyer bought anything. All that has occurred is that the seller has retained the fetus. Retention means that ownership of the fetus has not been transferred, and this causes the buyer no harm.

The correct view, then, is that excluding the fetus is permissible.

If someone were to say, “The fetus may be two or three,” we reply: This does not matter, because there is no compensatory transaction involved. It is simply as though he had sold him a non-pregnant animal. Such exclusion of the fetus occurs frequently with horses, as it also does with cattle and camels, and sometimes with sheep. A mother animal may be highly prolific and produce abundant milk, or, in the case of horses, be swift-running; so he wishes to retain her offspring.

Issue: If he excludes a specified portion of it, for example, saying, “I sell you this sheep, except for one pound of its meat,” the jurists say that this is not permissible, because the pound is known whereas the meat is unknown; and excluding what is known from what is unknown renders the latter unknown.