and is not
ah nulled by
the deceafe
o f the parties.
Partners may
make it by
allotting to
each the ufe
o f a. particular
part o f the
joint concern;
(in which cafe
either is at
liberty to let
his fliare j)
or by ftipu-
iating an alternate
right
to the ufe.
A p a r t it io n of ufufrudt is not annulled by the death of one-pf
two partners, nor even by the death of both, for if it were annulled,
it mull (mod probably) he renewed, (fince the heirs of the deceafed
may lawfully demand a partition o f ufufrudt,) and therefore it would
be to no purpofe to annul it.
I f two partners, by a mutual contradt, make a partition of ufu-
fruct refpedt in g a houfe, to this effect, that one of them fhall inhabit
one part of it and the other another,— or, that one (hall inhabit the
upper floor and the other the under, fuch contradt is valid ; for as a
partition of property executed in this manner is lawful, fo likewife is
a-partition of ufufrudt. It is proper to remark, that a partition of
ufufrudt, when thus executed, is in reality a feparation, that is, a
divifion of the whole of the (hares of ufufrudt of one partner from
thofe of another partner, and a concentration of both into one place:
but the contradt does not comprehend an .exchange, whence it is that
a limitation o f time is not required in it ;— for if it comprehended an
exchaftge, a limitation of time would have been requifite, becaufe of
its being (in that cafe) a leafe.
I t is lawful,for each partner to let put on rent that part of which
the ufufrudt has fallen to him, and he may appropriate to himfelf the
rent accruing therefrom, whether it be a condition in the agreement of
partition of ufufrudt or not; for every ufe which accrues from that
part becomes (in confequence of the partition of ufufrudt) his pro-
petty, and the rent which he receives'is nothing more than a compen-
lation given him in lieu of the ufe accruing from it.
If two partners make an agreement of partition of ufufrudt regarding
a (lave, in this manner, that the one day he fhall ferve' the
one, and the next the other, it is law fu l; (and fo likewife if they
make a fimilar agreement regarding^ fmall room;) for partition
of ufufrudt is fometimes effedted by means of time, and fometimes by
means
means of place 's and in the prefent inftance it is effedted by means of
the former, .
If two partners difagree concerning the terms of their contradt of
partition, the one alleging that, it related to time, and the other that
it related to place, the Kazee ought to enjoin them to agree regarding
one or other.,of thefe methods. T h e reafon of this is that the
pairtition of ufufrudt with,refpedt to place is the more -equitable, fince
by that means each.partner, enjoys: the ufe at the fame time that the
other partner enjoys it alfo; but. partition of ufufrudt with refpedt to
time, (on the other hand) is the more complete in regard to the ufe,
finde each individual then enjoys it entire. .As, therefore, the rea-
fons in favour of thefe two. methods are different, it is requifite that
the partners .agree on ,one of them-;— and if they chufe partition with
refpedt ,to time, the Kazee, to prevent the imputation o f partiality , muff
draw lots, in order to determine which of them (hall have the firff
turn..
If two partners (whom we fhall fuppofe Zeyd and Aniroo) make a
partition o f ufufrudt regarding two (laves, to this effedt, that the one
(hall ferve Zeyd, and the other Amroo, it is valid, according to the
two difciples ; for as (by their dodtrine) partition of property with
refpeft ’. to {laves is lawful, whether performed by the authority
of the Kazee., ,or by the mutual agreement of the parties, it follows,
that partition of ufufruEi, with refpedt to (laves, is alfo in the fame
manner lawful, Some (by inference from the doctrine of Haneefa)
maintain that the Kdzee muff not enforce the partition of ufufrudt
with refpedt to (laves ; (an.d fuch is reported as his opinion by Kha-
fa ff) becaufe compullion. being (as we have formerly (hewn) difal-
lowed by Haneefa with refpedt to partition of property in the cafe of
(laves, it evidently follows that the Kazee cannot enforce a partition
° f afufrudl in a fimilar cafe. The truth is, that if the Kdzee enforce a
partition, of ufufruEl in this way, it is lawful, according to Haneefa,,—
V ol. IV . F whereas,
A difference
between the
parties muff
be fettled by
the interference
o f the
Kazee.
Cafe o f parti-
ti6n o f the
ufe o f two
flaves,