Is the act of partition considered a sale (Bay') or a segregation of rights?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
Partition is the segregation of right and the demarcation of one share from the other; it is not a sale. This is one view held by Al-Shafi'i. Evidence supporting this is that partition does not require the language of proprietorship, pre-emption (shuf'ah) is not obligatory in it, it can be enforced, it becomes binding upon casting lots, and one share is measured against the other. None of these conditions apply to a sale.
Supporting text
Another view attributes the nature of sale to partition, arguing that one party exchanges their share in one portion for the share of the other in another portion, which is the essence of sale. If compensation (radd 'iwad) is involved in the partition, it becomes a sale because the party giving compensation exchanges money for their partner's acquired asset.