What is the ruling on the binding nature of a temporary division of usufruct (muhay'ah) once agreed upon?

General Chapter

Al-Mughni

Book of Judiciary

Book 62 · Issue 3 · Bab 1

Open in Qurani

Primary text

If the partners agree to muhay'ah, it is permissible because the right belongs to them both, allowing them to agree on its terms, similar to a consensual division. However, it is not permanently binding, as if either party withdraws their consent, the muhay'ah is revoked. If one partner subsequently demands a formal division, they are entitled to it, and the muhay'ah is consequently nullified. This position aligns with Abu Hanifa and his companions regarding its invalidation upon the request for division. The reasoning is that it involves offering usufruct benefits in exchange for receiving benefits without a formal lease agreement, thus it is not obligatory, unlike the case where one lends something in exchange for the other lending something when needed. It is distinguished from a formal division, which is the definitive separation of the right.

Supporting text

Malik states that muhay'ah is binding because, in his view, one can be compelled into it, making it obligatory, similar to a formal division of the underlying property.