He may also bar others from that water—except when a group arrives who possess no money and whose lives would be imperilled were it withheld. Thus the ḥadith was taken to concern wells dug in the open desert on land that belongs to no one. Mālik held that the person who excavated such a well has the prior right to it; once his own livestock have drunk their fill, he must leave what remains for the people. It is as though he considered that a well cannot become private property merely by bringing it into existence.
A comparable question is the separation of a mother from her child. The jurists agreed that it is forbidden to sell a mother apart from her offspring, for the Prophet—peace and blessings be upon him—said: “Whoever separates a mother from her child, Allah will separate him from those he loves on the Day of Resurrection.” They then differed on two issues: the point at which separation becomes permissible, and the legal effect of a sale that does occur.
Regarding the sale itself, Mālik ruled that it must be annulled, whereas al-Shāfiʿī and Abū Ḥanīfah held that it remains valid but that both seller and buyer are sinful. The root of their disagreement is whether a prohibition grounded in an external consideration renders the transaction void.
As for the time at which the ban is lifted, Mālik fixed it at the stage of eating solid food (ithghār); al-Shāfiʿī set it at seven or eight years; and al-Awzāʿī put it at more than ten years—once the child can fend for himself and no longer depends upon his mother.
Related to this is the case in which a sale involves so excessive a disparity in price that people do not ordinarily allow themselves to be deceived by it: does such unfairness warrant rescission? The well-known position in the Mālikī school is that it does not. ʿAbd al-Wahhāb, however, said that if the disparity exceeds one-third the sale is to be cancelled, and he attributed that view to some of Mālik’s associates. The Prophet’s—peace be upon him—granting an option to the owner of goods who is met by traders outside the town is cited as proof that such disparity is recognised, as is the three-day option he accorded to Munqidh ibn Ḥibbān because he was prone to being cheated in his purchases. Some of the early predecessors extended the ruling concerning a mother to the father as well, while others applied it to siblings.