without adjustment of the shares or valuation is valid for property of a single kind and for property of different kinds, as well as for goods measured by volume or weight, except foodstuffs for which unequal exchanges are prohibited. In this case, however, none of the co-owners may bring a claim against another on account of a shortfall, because no one accepted his allotment on the basis of an assessed value or specified measurements, or on the understanding that it was equivalent to what he relinquished. Rather, he accepted that particular allotment on condition that he relinquish all his rights in the remainder, whether less or more, exactly as in a sale negotiated by bargaining.
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There is no disagreement that this form of partition is a sale. It is therefore governed by the rules of sale concerning subsequent claims of ownership by third parties, returns on account of defects, and all other rulings relating to sales. As for the first two forms of partition, scholars differ over whether they constitute a separation of entitlements or a sale. Mālik—may Allah have mercy on him—explicitly stated in al-Mudawwana that partition is a sale. Sahnūn held that it is a separation of entitlements, although some of his statements indicate a contrary position. Ibn al-Qāsim’s position varies, as can be inferred from his answers to particular questions in al-Mudawwana and elsewhere.
The reasoning of those who regard partition as a sale is that each co-owner exchanges his share for the other’s: he acquires the other’s share in the portion allotted to him in exchange for his own share in the portion he relinquishes. This is purely an exchange, and such an exchange constitutes a sale. Those who regard it as a separation of entitlements reason that it does not depend on the co-owners’ consent; indeed, an element of chance through drawing lots may be permissible in it, which is incompatible with sale. It is thus established, according to this reasoning, that its purpose is to separate entitlements. The more convincing view is that partition by drawing lots is a separation of entitlements, whereas partition by mutual consent after adjustment of the shares and valuation is a sale.
As for partition by mutual consent after adjustment of the shares but without valuation, there is no disagreement that it is a sale in respect of all its rulings, as we have mentioned.
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Drawing lots was instituted in partition solely to put the co-owners’ minds at ease. Its basis is established in the Book of Allah, Almighty and Majestic, and the Sunnah of His Prophet, may Allah bless him and grant him peace. As for the Book, the Most High says in the account of Jonah—upon whom