grape molasses, and the like among liquids. It is the same whether we say that division is a sale or [a separation of a right]; because its sale is permissible, and its separation is permissible. If it contains different types, such as wheat and barley, or dates and raisins, and one of them requests the division of each type separately, the reluctant party shall be compelled. If he requests dividing them [by items] according to value, the reluctant party shall not be compelled; because this is a sale of one type for another type, not a division, so he is not compelled to do it, just like one who is not a partner. If they agree upon it, it is permissible, and it is considered a sale in which possession must take place before separation, in cases where possession is required, along with all other conditions of sale.
Section: If they have garments, animals, utensils, wood, pillars, or stones between them, and they agree to divide them, it is permissible; because the Prophet (peace be upon him) divided the spoils on the day of Badr, [the day of Hunayn], and the day of Khaybar, and they contained various types of property. It is the same whether they agree on the division of each type between them or on their division [by items] according to value. If one of them requests the division of each type separately, and the other requests their division [by items] according to value, the statement of the one who requested the division of each type separately is given precedence, if possible. If one of them requests division and the other refuses, and it is something that cannot be divided except by taking compensation for it from a different type, or cutting a garment when cutting it causes a loss, or breaking a vessel [or returning compensation], the reluctant party shall not be compelled. [If it is possible to divide each type separately, without harm and without returning compensation, the Qadi said: The reluctant party shall be compelled.] This is the apparent view of the Shafi'i school. [Abu al-Khattab said]: I do not know of any narration regarding this from our Imam, and it is possible that the reluctant party is not compelled. This is the opinion of Ibn Khayran, one of the Shafi'i scholars; because this is only divided [by items] according to value, so the reluctant party is not compelled
(19) In the original: "wa fi hima". (20) In the original: "iqrar bi-haqq" (acknowledgment of a right). This is discussed in the following section. (21) In the original: "wa iqraruhu". (22) In the original: "qismataha". (23) Omitted from: the original. (24) Omitted from: [B]. (25) Omitted from: [B]. It conveys an opinion. (26) In the original and [M]: "wa huwa qawl Abi al-Khattab". (27) He is Abu Ali al-Husayn bin Salih bin Khayran, one of the pillars of the Shafi'i school. He was an Imam, ascetic, and pious, who died in the year 320 AH. Tabaqat al-Shafi'iyya al-Kubra 3/271-274.
