If the co-owner who stands to be harmed seeks partition, is the other party compelled?

General Chapter

Al-Mughni

Book of Judiciary

Book 62 · Issue 11 · Bab 1

Open in Qurani

Primary text

If the co-owner who would be harmed by partition seeks it (e.g., the one with the one-third share in the preceding example), the other party is compelled to comply. This is the view of Abu Hanifa and Malik. The rationale is that the requesting party seeks to remove the harm of co-ownership through an act that does not harm the other partner, making it analogous to a situation with no harm involved. The harm to the requestor is willingly accepted from their side, negating its effect as a barrier.

Supporting text

The school's established view suggests the reluctant party is not compelled, due to the prohibition against wasting wealth and deeming the request from the harmed party as foolishness, which need not be indulged. Al-Shafi'i presents two views regarding compulsion if the requesting party benefits.