34 P A R T I T I O E B ook X X XD C
whereas,, i f he were in this way to enforce a partition of the fubfiance
it would be unlawful ; becaufe in the fervice of fiaves there is no.
great difference, but in their perfons they differ confiderably.
I f a partition o f ufufrudl be made regarding the above two fiaves
in this manner, that the maintenance of the one whom Zeyd takes
for his fervice fhall be defrayed by Zeyd, and the maintenance of the
one whom Amroo takes fhall be defrayed by Amroo, it is valid, on a
favourable conftrudlion. Analogy would fuggeft that it is.not valid,
becaufe the maintenance of each of the fiaves is incumbent on both the
mafters;— but when it is ftipulated that the maintenance of one o f
them fhall fall folely on one o f the mafters,. and that of the other
on the other mafter, it may be called an exchange; and as the confix
deration (fuppofing it an exchange) is uncertain, it is therefore invalid-
The reafon for a more favourable conftrudlion, in this particular, is
that in feeding fiaves Jlridnefi is not particularly regarded. It were
otherwife, however, if each partner ftipulated to clothe his flave, as
ftriclnefs is regarded with refpedt to clothingthem.
houfes “W> twc> partners, make a. partition of ufefruel regarding two houfes;
in this manner, that the one fhall inhabit the one houfe, and the
ether inhabit the other, it is valid: and the Kazee-mzy enforce it,
according to the two difeiples; and fueh is alfo the opinion of Haneefa^
as mentioned in the Zdbir Rawayet- The reafon of this, with the
two difeiples, is that as (agreeably to their tenets)'a partition of property,
made in this manner, is valid, fo likewife is a partition of ufu-
fru£ l. Some fay that according to Haneefa- fuch a partition o f
ufufrudl, when made by the mutual agreement of the parties,is valid ;
but that it cannot be enforced by the Kazee■ ; for although a partition
o f property of this nature, by the confent of the parties, be valid, flill
(agreeably to his tenets)' the Kdzee cannot enforce i t ; and the fame
of a partition of ufufruS. There is another opinion tranfmitted to
us from Haneeja, that a partition of ufufrudl in the manner abovementioned
C h a p . V , P A R T I T I O N . 35
mentioned is utterly invalid, whether enforced by the Kdzce, (for
the reafons which have been ftated above,) or made by mutual
agreement ; becaufe it Would be a fale o f refidence in one houfe for
refidence in another, which is not legal, as has been already (hewn in
treatingofHiKE. It is otherwife with refpedt to partition of thefubjtance
o f two houfes; for the fale o f a part of the one houfe for apart of the
other is lawful. T h e reafons for the opinion quoted from the Zahir
Rawdyet are, that as the difference between the ufufrudl o f the one and
o f the other is inconfiderable, a partition of the nature deferibed is m
the manner o f a feparation, and is therefore lawful when made by
the mutual agreement o f the parties, and may be enforced by the
Kazee. T h e difference, on the contrary, between the fubfiance o f
the houfes may be very confiderable ; hence a partition of the Jubilance
of them, in the manner deferibed, is (in effèdt) an exchange,
and may accordingly be njade by the confent of the parties, but cannot
be enforced by the Kazee.
If a partition of ufufrudl be made regarding two quadrupeds, to
-this effedt, that the one partner fhall have the riding o f the one, and
the other the riding of the other, it is not valid according to Haneefa.
According to the two difeiples it is valid; fince a partition of property
made in this manner is {by their dodlrine) valid; and partition of
ufufrudl is only a branch of partition o f property. The argument of
Haneefa is, that there is a difference in the ufe and riding of one or
of another quadruped, becaufe of the difference in riders, fome being
■ expert and knowing in the art o f riding, and others the reverfe.
T h e fame difference of opinion alfo obtains concerning a partition of
ufufrudl, by rotation, with refpedt to one quadruped :— in oppofition
to a fiave; for a flave ferves according to his‘own reafon, and will
not fuffer a greater burden than he is capable of bearing, whereas a
•quadruped muft fubmit.
T 2 I f
••or, 'of tnv*
quadrupeds.