The governing criterion is this: if the land can be divided without harm and without payment of compensation, then partition is compulsory. But if it cannot be divided except with harm or payment of compensation, then partition is optional.

For example, two men jointly own a plot of land measuring ten metres by ten metres. One of them requests partition while the other refuses. Can he be compelled? He cannot be compelled to partition it, because if it were divided, it would be rendered unusable and unsuitable for building anything. Thus, there is no right of pre-emption in this case.

The second example is of two men who jointly own a large plot of land which, if divided, would not harm either of them, and each could make full use of his share. Partition in this case is compulsory. If one of them requests that it be divided and the other refuses, the latter may be compelled to do so. Thus, pre-emption applies in this case, whereas it does not apply in the first.

According to the author’s view, if the co-owner of the first plot—that is, the small plot—sells his share to someone, does his co-owner have the right to exercise pre-emption? The author holds that he does not. But if the co-owner of the large plot sells his share, his fellow co-owner has the right to exercise pre-emption. Which of the two cases is more deserving of pre-emption: the second or the first?

The first is more deserving of pre-emption, because it cannot be divided, and there is no way to free oneself from the new co-owner. The second, however, can be resolved by requesting partition: it can be divided, and the difficulty comes to an end. Therefore, it would have been more appropriate to say that land whose partition is not compulsory and which can only be divided by mutual agreement is more deserving of the establishment of pre-emption than land that is subject to compulsory partition. This is what reason indicates.

If someone were to say: What is the evidence for the condition stipulated by the author? For