the respective shares of ownership. Thus, if one of them says to the other, “Let us split the fee equally, since there are two of us,” and the other agrees, that is permissible. Otherwise, it is apportioned according to their respective shares of ownership. This view is more correct.
As for his statement, “according to the respective shares of ownership,” its basis has already been explained. As for its being according to their stipulation, this is due to the generality of Allah’s saying: “O you who believe, fulfil your contracts.” [al-Ma'idah 5:1] And His saying: “Fulfil every commitment.” [al-Isra' 17:34] The Prophet, peace and blessings be upon him, said: “Every condition that is not in the Book of Allah is invalid, even if there are a hundred conditions.” (1) He also said: “Muslims are bound by their conditions.” (2) And he said: “The conditions most deserving of fulfilment are those by which you made marital relations lawful for yourselves.” (3) This shows that conditions must be fulfilled.
His words, “Once they have divided it or drawn lots, the division becomes binding; and however they draw lots is permissible”: if the division is a compulsory division, and they divide it and each of them accepts it, then the division becomes binding, and there is no option to rescind it, even if they are still in the session of division;
(1) Recorded by al-Bukhari in The Book of Sales, chapter: “When conditions are stipulated in a sale that are impermissible” (2168), and by Muslim in The Book of Manumission, chapter: “Clarifying that al-wala belongs to the one who emancipates” (1504 [8]), on the authority of Aishah.
(2) Related by al-Bukhari in suspended form, using definitive wording, in The Book of Hiring, chapter: “The fee for brokerage.” It was narrated with a connected chain by Abu Dawud in The Book of Judgements, chapter: “Concerning settlement” (3594), and by al-Hakim (2/92), on the authority of Abu Hurayrah. Al-Tirmidhi also narrated it in The Book of Judgements, chapter: “What has been related from the Messenger of Allah, peace and blessings be upon him, regarding settlement between people” (1352), from Kathir ibn Abd Allah al-Muzani, from his father, from his grandfather, that the Messenger of Allah, peace and blessings be upon him, said: “Settlement is permissible among Muslims, except a settlement that makes lawful what is unlawful or makes unlawful what is lawful. Muslims are bound by their conditions, except a condition that makes lawful what is unlawful or makes unlawful what is lawful.” He said: “Hasan sahih.” See al-Majmu (9/464) and al-Irwa (5/142).
(3) Recorded by al-Bukhari in The Book of Conditions, chapter: “Conditions concerning the dowry at the time of the marriage contract” (2721), and by Muslim in The Book of Marriage, chapter: “Fulfilling conditions in marriage” (1418), on the authority of Uqbah ibn Amir.