A partition
mult be ordered
where
the property
confifts o f articles
o f one
fpecies, (not
being land or
money j)
but not where
it conflits o f
*:various fpecies,
or o f houfe-
hold veffels.
A partition
may be made
o f cloth of an
equal quality;
lively made, it is with a view to promote u tility; but, in the prefent
inftance, all utility would be deftroyed by it, and therefore it cannot
take place without the confent of both the partners, as they muft
neceflarily be the-beft judges in a matter which concerns themfelves,
and the Kdzee can only be guided by appearances.
W h e n the joint property is Aroo% * , (that is, neither dirms, deenars,
lands, or houfes,) the Kdzee muft order the partition, provided it [the
property in queftion] be all of one fpecies, . fuch as articles of weight
or meafurement of capacity, or fimilars of tale, or gold, frlver, iron
‘ or copper, or cattle of one fpecies, whether camels', oxen, or goats ;
for as, in this cafe, there can be no difference in the defign, the partition
may be effected with equity, and utility may thereby be accom-
plifhed.
T he Kdzee muft not order a partition when the joint property is
of various fpecies, fuch as a camel and a goat, or a houfe and an afs ;
becaufe, as articles of different fpecies cannot be indiferiminately
blended, the partition, in this inftance, would not be a feparation and
difiinclion, but rather an exchange, which muft always be effected by
a mutual corfcfjrrence of the parties, hot by the decree of a ma-
giftrate.
T he Kdzee muft not order a partition of houfehold veffels,. as
thofe are fubjedt to the rule of diverfity of fpecies, becaufe of difference
of workmanfhip. He may make a partition of Herat cloths, as thofe
are all of one quality; but he muft not make it of a fingle piece of cloth
which is not uniformly alike throughout, for the divifion of one piece
of cloth occafions an injury, as it cannot be effected without cutting
it; neither muft he make a partition of two pieces of cloth where
they are of unequal value. It is otherwife where there are three
* Some lexicographers define Arooz to fignify houfehold furniture, (Soordj-al-Loghai),
pieces,
pieces, the value o f one of which is equal to that of the other V wo;
or1 where the value of one of them is one dirm, that o f another one
dirm and a quarter, and that of the third' one dirm and three quarters ;
for, in' the firft cafe, he muft give one piece to the qne partner, and
the other two to the other partner ; and, in the fecond' Cafe, he muft
o-ive to one of the partners the' fecond piece, valued at one dirm and a
quarter; to the other the third piece, valued at one dirm and three
quarters, and muft leave the firft ftill to be held in partnerfhip, one
fourth appropriated to one partner, and three fourths to the other, as
it is lawful to divide a part of a joint property, and to leave a part
undivided-
H a n e e f a is o f opinion t h a t flaves and jewels muft not be di vided but not o f
r %rr - . , . c , jewels or
by the Kdzee, becaufe of the great difference which is to be found j iaves.
amongft them. The two difciples hold, that he may make a divifion
of flaves, for this reafbn, that they are of one fpecies, like camels, oi
goats, or captives taken in war. T h e argument of Haneefa is, that
among the individuals of the human fpecies there,is a wide difference,
becaufe of their various chara&eriftics ; and hence flaves are, in effeft,
of different kinds. It is otherwife among animals, for with them
there is little difference to be found betwixt the individuals of the fame
genus; and although the male and female of the human race be held
as different fpecies, yet the male and female amongft animals are
reckoned as the fame fpecies. It „is alfo different with refpeft to-
flaves taken in war, as it is in their value that the captors hold a right,,
whence it is lawful for the Sultan to fell them and make a divifion. of
the price ;. whereas, in a cafe o f partnerfhip, the right of the partners
is connected with the fubfance o f the article, as well as with the property
it involves. Hence there is a difference betwixt plunder and
partnerfhip property.— Some are of opinion that jewels cannot be
divided when they are of different fpecies, fuch as pearls and rubies-
Others fay, that where the jewels are of large grains they cannot be.
divided, becaufe of the great difference that may be betwixt them
y hilt