it, and because it is distinct from sale by its name and rulings, it is not a sale, unlike other contracts. The benefit of this disagreement is that if it is not a sale, it is permissible to divide fruits by estimation (kharṣ), measured goods by weight, and weighted goods by measurement, and to separate before taking possession in cases where possession is considered in a sale. Furthermore, one does not break an oath if one swears not to sell by it. If real estate or half of it is a waqf (endowment), division is permissible. If we say: it is a sale, these rulings are reversed. This applies if it is free of compensation (radd); if it contains a return of compensation, it is a sale, because the one providing the compensation is offering wealth in exchange for what he receives from his partner's property, and this is the essence of a sale. If they do that in a waqf, it is not permissible, because its sale is not allowed. If some of it is a waqf and some is absolute property, and the compensation is from the owner of the absolute property, it is not allowed, because he would be buying a portion of the waqf. If it is from the beneficiaries of the waqf, it is allowed, because they would be buying a portion of the absolute property, and that is permissible.

Section: The testimony of the divider (qāsim) regarding the division is accepted if he is a volunteer, and is not accepted if he is working for a fee. This is the opinion of al-Iṣṭakhrī. Abū Ḥanīfa said: It is accepted, even if for a fee, because he is not subject to suspicion, so his statement is accepted, like that of a wet nurse. Al-Shāfiʿī said: It is not accepted, because he is testifying regarding his own act which necessitates his amendment (taʿdīl), so it is not accepted, like the testimony of a deposed judge regarding his own ruling. Our argument is that he testified to something in which he has no benefit, so it is accepted, like a third party. If he is working for a fee, it is not accepted, because he is suspected, as he is causing the fee for himself, [and this is a benefit, so his testimony would be for his own self]. Al-Shāfiʿī's statement that it necessitates his amendment is refuted, and we do not concede to them what they mentioned regarding the ruling.

1880 - Issue; he said: (If one of the two partners asks his partner to divide it, and he refuses, the ruler shall compel him to do so if the ownership of both is proven to him, and it is of a type that can be divided and both of them can benefit from it after it is divided.)