Section Three
On the Relevant Legal Rulings

With respect to commodities that are sold by volume or by weight, partition by drawing lots is impermissible by unanimous agreement—save for an isolated view reported from al-Lakhmī.

Measured goods, moreover, will be either a single heap or two heaps or more. When the goods belong to a single genus, their division may, at the request of either partner, be carried out with exact equality through measuring or weighing. There is likewise no disagreement that the partners may, by mutual consent, divide them unequally in an evident manner, whether the commodity is of a ribā-susceptible kind or not (that is, of a type in which disparity is normally prohibited). Such a division may be effected with either a specified or an unspecified measure, but it may not be executed haphazardly without any measurement or weighing at all.

Should the partners choose to divide by mere estimation, one opinion holds that estimation is forbidden for what is sold by volume yet allowed for what is sold by weight, and the very same points of disagreement arise here as occur in the permissibility of estimating in sales.

If the property consists not of a single heap but of two distinct species, two possibilities arise. Should the commodities be of a kind in which disparity is forbidden, they may only be divided jointly by means of a known volumetric measure for what is measured and the recognised balance for what is weighed; for if an unknown measure were used, one could not know how much of each species had been taken when the two differ in standard measures. All of this represents the Mālikī position, for the foundation of the school is that disparity is unlawful between two species whose utilities are close, such as wheat and barley.

If, on the other hand, the commodities belong to a class in which disparity is permissible, they may be divided either with perfect equality or with a clear and acknowledged disparity, using an established measure or the recognised balance—even when the goods comprise two different species taken together. All of this permissibility, within the school, rests on the partners’ mutual consent. When a compulsory judicial division is involved, however, each heap must be treated separately; and once each heap has been divided on its own, that partition may be executed with either a specified or an unspecified measure.

Such, then, are the rules governing partition when slaves are the object of the joint ownership.

The Second Category: Division of Usufruct

As for the division of usufruct, Ibn al-Qāsim holds that it may not be effected by casting lots; one who refuses it cannot be compelled, and the drawing of lots has no place in this context. Abū Ḥanīfah and his companions, by contrast, maintain that a partner may indeed be forced to divide the usufruct. All authorities, however, agree that the partition of usufruct takes place through mutual allotment (muhayāʾah), which can be effected either by periods of time or by particular items.

1. Division by time: each partner enjoys the use of the property for a span equal to that enjoyed by the other.

2. Division by the items themselves: the slaves are apportioned so that each partner may benefit from the portion allotted to him for a specified term, while the slaves remain under their original joint ownership.

Within the Mālikī school, regarding division by time, there is disagreement over the maximum period for which it is permissible to allocate some benefits to the exclusion of others, whether for revenue or for simple use—such as the service of a slave, riding an animal, or cultivating