Is a co-owner obligated to agree to an agreement for temporary division of usufruct (muhay'ah) without a formal division of the property?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
A co-owner cannot be compelled to agree to an agreement for temporary division of usufruct (muhay'ah) concerning parts of the property, such as one dwelling in one part of a house or cultivating one part of a field, while the other uses the remainder, or alternating yearly use. This view is held by Al-Shafi'i. The reasoning is that muhay'ah is a form of exchange (mu'awadah), and therefore, one cannot be compelled to enter into it, similar to a sale. Furthermore, each partner has an immediate right to the usufruct, and delaying it without consent is not permissible, akin to a debt, or as acknowledged by Abu Hanifa regarding slaves. It differs from the original division (qismat al-asl), which effectuates the separation and distinction of the two rights.
Supporting text
Abu Hanifa and Malik maintain that the reluctant co-owner must be compelled, basing their opinion on the principle, 'There is no harm and no inflicting of harm.' However, Abu Hanifa agrees with the opinion that one cannot be forced into muhay'ah specifically regarding slaves. If the co-owners agree to muhay'ah, it is valid because it is a mutual agreement regarding a right belonging to both, like a voluntary division. It is not binding; if one party withdraws their consent, the muhay'ah is dissolved. If one partner demands a formal division, they are entitled to it, and the muhay'ah is consequently nullified.