Thus, it is similar to if he had called witnesses to his own receiving of the price or the subject of a salam contract, and then claimed a mistake in its measurement or weight. Their statement that his right to the excess was relinquished by his consent is incorrect; for it is only relinquished with his knowledge. However, if he thought he had been given his right and consented based on that, and then the mistake became apparent to him, his right is not relinquished by this, just like the price and the subject of a salam contract. For if he had received the subject of the salam contract based on it being ten measures, being satisfied with that, and then it was established that it was eight, or if the seller of the salam claimed he had made a mistake and gave him twelve, and this was proven by evidence, the right of neither of them is relinquished by their consent to it, and the hearing of his claim and evidence is not prevented. Furthermore, if the defendant in our case were to acknowledge the mistake, the partition would be annulled; and if the plaintiff's right were to be relinquished by consent, the partition would not be annulled by his acknowledgment, just as if he had gifted him the excess. Our companions and others have mentioned regarding someone who sold a house on the condition that it is ten cubits, then it turns out to be nine or eleven, that the sale is void according to one of the two views, and in the other, the excess belongs to the seller and the deficiency is against him. The sale is only binding by mutual consent, so if consent were to relinquish his right to the excess, the seller's right to the excess and the buyer's right to the deficiency would also be relinquished. And Allah knows best. Furthermore, whoever consents to something based on a belief that turns out to be otherwise, his right is not relinquished by it, just as if they partitioned something and consented to it, and then the share of one of them turned out to be rightfully claimed by another. If it is said: Why do you not give the aggrieved party his right in these two cases without annulling the partition, just as if the mistake became apparent in the price or the subject of a salam contract? We say: Because the mistake here is in the partition itself, by violating one of its conditions, which is the equalization of the shares, so it is void due to the failure of its condition. In the case of the salam subject and the price, the mistake is in the receipt, not the contract, for the contract has been completed with its conditions, so a mistake in receiving its equivalent does not affect its validity, unlike our case.

Section: If the two partners partition something and then a portion of it turns out to be rightfully claimed by another, you must look: