If a shared courtyard is divided crosswise (each taking half the width along the entire length), when is the dissenting party compelled to agree?

General Chapter

Al-Mughni

Book of Settlement

Book 16 · Issue 3 · Bab 1

Open in Qurani

Primary text

If the division is requested crosswise, the ruling depends on whether the courtyard is large enough to accommodate two walls. If the courtyard cannot accommodate two walls, the dissenting party is not compelled to agree to the division. If it can accommodate two walls, allowing each to build their own wall, there are two opinions regarding compelling the dissenter. One opinion states compulsion is appropriate because no harm results, as each receives enough to satisfy their need, similar to the division of a house courtyard. The second opinion states compulsion is not appropriate because this division cannot involve drawing lots; if lots were drawn, one's share might fall adjacent to the neighbor's property, rendering it useless. Forcing acceptance without a lot has no precedent.

Supporting text

Ibn 'Aqil and the apparent view of Al-Shafi'i suggest compulsion is appropriate because it is a courtyard and must be divided like a house courtyard. The counter-argument is that division causes harm, thus no compulsion is applied, similar to a small house.