al-Qāsim regarding its annulment. On one occasion, he said that it is annulled for all of them: the newly established debt is paid from the estate as a whole, and the remainder is then divided. Any loss through death, damage inflicted by another, or a decline in value owing to market fluctuations or otherwise is thus borne by them all. This applies unless they choose to pay the debt from their own funds and leave their division intact, or one of them volunteers to pay the entire newly established debt himself because he is pleased with his share. He may do so, and the division is not annulled, just as if the creditor had forgiven the debt.
None of them may pay only his own proportion of the debt and retain the share he received through the division. An exception arises when the debt is established by the testimony of one of the heirs together with the claimant’s oath, and the other heirs wish to pay the debt from their own funds and maintain the division, but the witness refuses. He has no right to refuse, because he is suspected of seeking to annul the division merely to increase his share, whether because he was disadvantaged in the division, because all or part of his share was lost through an act of God, or for some similar reason. This, however, calls for examination: if he is under suspicion, his testimony ought not to be admissible. This is Ashhab’s position.
On another occasion, he said that the division is annulled only among those who still possess all or part of their shares, or who have used up all or part of them. As for anyone whose entire share was lost through an act of God, nothing is recoverable from him towards the debt, nor may he claim a share alongside the other heirs in what remains of the estate after the debt has been paid. This opinion of his appears in some transmissions of al-Mudawwana.
Ibn Habīb held that the division is annulled for all of them, in agreement with Ibn al-Qāsim’s first opinion. According to him, however, any of them may retain his share by paying his proportion of the debt, unless some of the property held by the other heirs has been lost through death or calamity. In that case, he may not do so unless he shares their liability for what died or was lost to calamity, bearing his proportion of that loss.
Ashhab and Sahnūn agreed that the division is not annulled, but differed over how the debt is apportioned against the property in their possession. Sahnūn said that it is apportioned according to the value of what each holds on the day of judgment. In one of his two opinions, Ashhab said that it is apportioned according to the proportions in which they divided the estate, whether the value of their shares has increased or decreased, provided the property remains and has not become unavailable. According to Sahnūn and Ashhab, therefore, it makes no difference whether the debt is established by two witnesses or by the testimony of one of the heirs together with the claimant’s oath, since, on their view, the witness derives no benefit from his testimony.
Section
They all agree that the division does not make the heirs liable for loss resulting from an act of