Partition involves
a feparation
jui articles
o f weight
or meafure-
ment o f capacity
,
P A R T I T I O N , B ook X X X IX .
Chap. IV , O f Pleas of Error in Partition; and o f Claims o f
Right in regard to it.
Chap. V . O f the Laws of Mahayqt.
C H A P . I.
TH E partition of things held in joint property is lawful and
valid ; becaufe the prophet was accuftomed to make a partition
of plunder and hereditaments | and it is moreover a praftice which
no one pretends to controvert. It is to be obferved, however, that
partition may be received in two fenfes ; for, confidered in one view,
it is a Separation, as it feparates or diftinguilhes the right of one man
from that of another; and confidered in another view it is an exchange;
becaufe, the lhare or portion which falls to one of the parties in con-
fequence of the partition is partly his own original right but part o f
it was the right of the other during their joint property; and this he
receives in lieu of that part of his own right, which remains involved
in the other’s lhare. It is more particularly a feparation with refpeft
to articleflof weight or meafurement of capacity, fuch as wheat or
filver, becaufe o f the fimilitude of their parts; for as thefe articles
do not differ in their properties, the end to be anfwered by one parcel
of wheat or filver being juft the fame as by another, (fmce there is
nothing in the one that was not in the other,) it follows that each
perfon receives his entire right, and nothing is left in the lhare o f
the one which of right belongs to the o t h e r w h e n c e it is that one
partner may lawfully take his lhare during the abfence of the other;
and alfo, that if two men make a joint purchafe of any article of
weight or meafurement of capacity, and afterwards divide it, each
may
may feparately fell the fhare which falls to him for a deteimmatc
profit on' half the original price. It is, on the other hand, more H |
particularly an exchange with refpeft to articles diffimilar in their tides o f Hi
1 . . . , , . . fimilar parts
parts or unities, fuch as animals or houlehold goods;— whence it is or unities.
that one of two partners in fuch articles cannot lawfully take his
fhare in the abfence of the other; and alfo, that i f two men buy any
thing of this fpecies, and afterwards make a divilion, they cannot feparately
fell their refpedtive lhares at a determinate profit on half the
original coft. Here, however, if thofe articles be all of one particular
fpecies, fuch as a herd of goats, the Kdzee, at the requifition of only
me of the partners, muft enforce a partition; for the properties of all
the goats being nearly the fame, fuch a partition is, in effeG, only a
feparation;— and the intention of fuch a requifition being, that the
partner who makes it may enjoy the ufe of his own fhare folely,
without any other perfon being able to interfere in his property, it is
incumbent on the Kdzee to comply with his requifition. Where, on
the contrary, the joint property confifts of articles of different fpecies,
the Kdzee muft not enforce a partition, as it cannot be made , equitably
where each particular thing differs from the reft in its properties.—
If, however, both the partners confent to a partition o f things. of
■ various fpecies, it is lawful.
I t is incumbent on the Kdzee to appoint a perfon to make parti- 3f l B | y
tions, and to fettle on him an allowance from the public treafury, j>oint a ju b -
fo as that partitions may be. made for the people without his receiving er;P«d muft
any hire; becaufe, as the making of partitions is a part of the duty of gjP®mthlma
the Kdzee himfelf, (it being necefiary in order to terminate difputes,)
the allowances of the perfon appointed for this purpofe muft be defrayed
from the public treafury, in the fame manner as thofe of the
Kdzee; and alfo becaufe, as the appointment of a perfon to make the
partition is,a benefit which extends to all Muffulmam, the charge of
his maintenance muft be defrayed from the public treafury, which is
the property of all. I f it be not in the power of the Kdzee to fettle
B 2 the
or eftabîifh H
particular