The reluctant party shall not be compelled against it, just as he is not compelled to divide houses by having this one take a house and that one take a house, similar to two different types. The argument for the first [view] is that a single type is like a single house, and the difference in value within a single type is no greater than the difference in value between a large house and a great village; for the land of a village varies, especially when it contains various trees and diverse types of land, and a house contains rooms that are spacious and narrow, modern and old. Yet this variation does not prevent compulsion regarding division. Likewise [is] a single type. It differs from houses because it is possible to divide each house separately, whereas here it is not possible to divide every garment or vessel separately. If the garments are of different types, such as silk, cotton, and linen, they are like different kinds, as are other types of property. Animals are like other types of property, and a single type of them may be divided. This is the opinion of al-Shafi'i, Abu Yusuf, and Muhammad. Abu Hanifa said: Slaves may not be divided by compulsory division because their benefits vary, and they are valued for their intellect, religion, and astuteness, and equality cannot be established therein. Our argument is that the Prophet (peace be upon him) divided the slaves whom the Ansari had emancipated during his illness into three parts. Also, because they are a type of animal to which valuation applies, their division is permissible, like other animals. What he mentioned is incorrect, because the value encompasses that and accounts for it, like other items that are different.

Section: Division is the separation of a right and the distinction of one share from the other, and it is not a sale. This is one of the two opinions of al-Shafi'i. In the other [opinion], he said: It is a sale. It is narrated from Abu Abd Allah Ibn Batta that it is a sale because one exchanges his share of one portion for the share of his partner from the other portion, and this is the essence of a sale. Our argument is that it does not require the wording of transfer, shufa (pre-emption) does not become obligatory therein, it is subject to compulsion, it becomes binding upon drawing lots, and one of the two shares is determined by the amount of the other. Sale does not permit any of these things.