Partition o f
the advantage
from a
houfe mav be
effected by
each party
letting it to
hire alternately,
any occa-
iional excefs
in the rent
being divided
equally between
them.
In a cafe o f
partition o f
the advantage
from two
houfes, neither
party is
accountable
for any excefs
o f rent to the
other.
If a partition be made regarding the produce of a houfe, to this
effect, that the one partner (hall let it out to rent for one, or two
months, and enjoy the produce or rent, and that afterwards the other
partner fliall let it out in the fame manner, and enjoy the rent, fuch a
partition is valid, according to the Zdhir Rawdy a t: but a finiilar agreement
regarding a Have or a quadruped is not valid. T h e reafon of
this diftindtion is, that in the cafe of the (lave or quadruped the equality
of the fieveral flrares, which is a neceflary condition, is loft,—
whereas in the cafe of the houfe it is preferved ; for Haves and quadrupeds
are changed and prejudiced by the lapfe of time and fevere
labour, and it is probable that their hire will be left the fecond than
it- was the firft turn, whereas a houfe may be fuppofed to continue in
the fame ftate during both turns,, and the rent may.be equal.
If, it ftiould happen that the rent of a houfe is greater during the
turn of one partner than in that of the other, they are both to participate
in the excefs, or difference betwixt the one rent and the other,,
fo that an exadt equality maybe effected betwixt them. It is other-
wife where they make a partition relpedting the 'ufe of the houfe,' and
it afterwards yields a greater produde to the orie in bis turn than to
the other, for as, in this cafe an equality has ftill been preferved in
that which was the fubjedt of partition, (namely, the ufe ft) the excefs
of acquifition, received in return for the ufe, is immaterial,. fince it
frequently happens that there are- two things exadlly equal, and yet
the return received for the one is greater than that received for the
other.
A p a r t it io n concerning the rent of two houfes is likewife lawful,
according to- the Zd hir'’Rawdyet, for the -fame reafons as have
been afligned in the cafe of one houfe. If, however, one houfe yield
a greater rent than the other, ftill the partners do not both ftiare in
the excefs. T h e reafon of this diftindtion is that, in the cafe of two
houfes, when a partition of their rents is made, fcparation is the prevailing
vailing principle; becaufe as each partner enjoys the rent of his particular
houfe, at the fame time, it follows that each obtains the whole
o f his refpedtive rights, without leaving any part o f them with the
other,— whereas in a partition o f the ufufrudt o f one houfe, the partners
receive the.rent .by rotation, (that is, the one receives the rent
the one month, and the other receives it the other,) and it may therefore
be faid that, they fuccèffively grant to each other a loan of their
lhares of the rent,— the partner who holds the fecond month lendin»
to him who holds the firft month his fhgre, or half o f the rent for the
firft month, which he is again to receive out of the rent of the fecond
month ; and it may be alfo faid that during their refpective months
each adts as agent for the other in receiving his ftiare ;and when the
other has received his ftiare from the rent of the fecond month, if
there be an excefs, it is divided betwixt them ; but if, on the contrary,
he be.not able to recover the whofe amount of his loan from
the rent óf the fecond month, (it being lefs than the firft,) the excefs
which is on the. fide of him who held the firft month muft be divided
betwixt the partners, fo that a perfedt equality may be thus accom-
plifhed.
A c c o r d i n g to the two difoiples, a partition with refpedt to the
hire of two Haves, made in the manner of the preceding cafe, is lawful,
as well as] a partition with refpedt to the J'ervice and ufe o f two
Haves. Haneefa maintaining that it is not valid; hecaufe the difference
to be found in two Oaves' is''greater than that which is to be
found in one Have at two feparàte periods.As, moreover', a partition
with refpedt to the gain fequired from "ftfirtgfeflivfef'by rotation,
is invalid, it follows that iuch a partition with refpedt:' to the'.gain acquired
from tzvo Haves is invalid a fortiori. Befides;- a partition regarding
the fervice and ufe of {laves is admitted from necijfity, Haves
being of themfelves indivifible ; but there is no necefiity in thé
cafe of the hire of Haves, as that is a thing which is capable of divi-
fionf In the cafe, moreover, of fervice, it may not be requiiite to
confider
Cafe o f partition
o f the
advantage
from two
flaves.