FJT05 Fiqh of the Judiciary & Testimonies – Division – of Shared Properties
Channel: Hatem al-Haj
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Bismillah Alhamdulillah wa salatu salam are set
to proceed. So today inshallah we will have
three chapters we will go over
Bible plasma or a chapter on division. That's the first one, and then we will start the book of testimonies.
And inshallah we will take, you know, the book of testimonies and the chapter on those whose testimony is rejected, because that's part of the conditions of acceptance of testimony or shadowed propodus.
And that's part of the book of testimony. So the truth and the marijuana, that's be basically the prerequisites or conditions, as well as marijuana
hindrance hindrances from accepting a testimony. So
let's start by Babel pixma. And this is going to be a smaller chapter,
the chapter on division of properties. And he added a Babel kozma, to the book of Kabbalah, because usually, plasma follows.
After the judge determines the shares, then the chairs need to be divided. If people inherited a shared property, they need to divide the property, if it is a piece of land, they need to divide the piece of land if there's
sort of a building they need to divide the and that usually is
not that simple. You know, the dividing a piece of land is not that simple, because
you know, different parts of that land may have different values. The same applies to buildings and things of that nature. But Bhisma is not limited only to basically what follows.
Or what follows the judicial process, because sometimes you may want to have piersma, or division of properties with a partner. And any property if you have any Chevron's property, you may not even go to the judge, you may decide to do it among yourselves, you may decide to hire someone to divide the property for you, an expert to divide the property for you without resorting to court or without going through the judiciary. So plasma is not always it's not always related to the judiciary, but because it often is
particularly when there is this mutation. Then, it was appropriate to put the chapter on division under the book of Aqaba. So, the Magna Kodama himolla in his book, which is a very primer,
he said under the chapter on division or Ababa kosma way ANOVA on this metal edge, where he is metal Maryam Kinnock is metal woman.
his thoughts about how to shake any customer who
would hakimullah either
medical or maybe beginner? So, let's just break this down into smaller paragraphs. So, what do I know there are two types base metal each bearing will hear this metal monkey no matter whom invaded or in what are the
first a division that can be imposed those properties that can be divided that without any harm to any partner for need for compensation of any partner. So he will talk about two different types of charisma. charisma is bar and charisma Tara the cosmetic bar enforceable pets matter are the only by mutual agreement. So, basement h bar whenever the partner comes and asks
for division, we will force the other partner to accepted a division of the property because McDarrah the they will have to mutually agree what if some partner does not agree then we will then we will have them sell it and then divide
the sort of the the price but
you know, partnership is considered a burden. Partnership is considered a problem. So if someone wants to get out of a partnership, we will
It enabled them to get out of that partnership.
Now, how will we enable them to get out of the partnership, if
if, if the property can be divided without harm
to anyone, and the property can be divided without monetary compensation or without compensation
by anyone, for anyone, then we will force the partner or partners to accept the division if one of them asks for it. So I have a piece of land here.
And a piece of land that has a well
let us say that the value of the wealth is $200.
The value of the well is $200. The value of the land aside from the well is $100. And this particular example, how do we divide this
I mean, you can to divide the will. So that's as you can, you will not be able to divide the world, let's let's that that's an assumption, you're not going to be able to divide the world. So you will give the wealth to one person.
Okay, and the other one will get 100. In order for this to be a fair division. In order for this to be a fair division, the person who got the will will have to pay the person who got the land, but outside of the well, let's say that the land and here for instance,
the person who got the wheel will have to give the person who got the land $50 to make him up
the fact that that compensation has to be paid. The fact that the compensation has to be paid, means that this division is not enforceable by court.
They would have to sell everything and then divide the price, but we cannot make that division for them enforceable, and by court by the court, when when this division the possible mutual agreement para the mutual agreement. Why is this? Because in this particular case, what is happening here is what
sale transaction This is in, in essence, a sales transaction, can you input Can you force as a transaction? No. So in this case, since there is a compensation, you one partner has to make up the other partner by a monetary compensation, this will be classified as a sale transaction. And this will make that division unenforceable.
Now, I have a piece of land
and a whale.
price of the well is let's say 100. And the land is 200.
The land is 200. If I give
the land is 200. So if the land is 200. Each one quarter of the land is what 50.
let's presume there are it's equal price for each quarter of the land. So if I give
the well and one quarter of the land, someone that's 150
and the rest of the land to the other person that's 150 is less enforceable. Yes, it is. Because there is
no need for compensation. But what is the other condition? ladera. That should not be hard. What if the land will be useless without the well,
then it's not enforceable. But if if there will not be if they want to be harm,
then this division is enforceable. This division is enforceable. Why? Because there is no harm. And because
there is no need for compensation. The property itself can be divided fairly between the two partners. What if one partner partner has 1/3 of the property and the other partner has two thirds The same applies
If we can divide it properly, without compensation, and without harm to any partner, and one partner asks for the division of the partnership, we will force the other partner to accept the vision. Why? Because partnership usually, not usually, let's be more optimistic partnership is often
Let's be more optimistic partnership is sometimes problematic a burden. So,
sometimes it is needed to get out of a partnership.
So, then, there is another condition that he will mention, for us to make that division
to enforce that division,
he will come to it now. So he even says his
Devaraj will hakimullah he is sebata. And the whole mill Kuma Baba Yana
if one of the two partners requests that the property be divided, but the other
refuses. But the other refuse is,
the judge who would force him to accept it as long as there is proof of their shared ownership will force them to accept it as as long as there is proof of their share the ownership of the land, whatever they come to you as a judge and say, we own this piece of land divided between us.
And then you divided between them. And it turns out, they both don't own it, it's owned by someone else. The fact that they both agreed that they own that piece of land please divided between us does not mean that there is no third claimant.
So you will not divided between them unless they produce proof, you will not enforce the division unless they produce proof that they actually go on that land. And
if they cannot produce proof, then he speaks about it here in akara, BLM huge, better Montana.
We're interlobar Happy, happy, happy cozy Matt bainer will ask better than puppy and pets matter and a customer who can on a property ladder.
If their ownership is established through acknowledgement, then the second one will not be forced to accept the division. If they both agree to divide the property in this case, it will be divided between them. But it will be documented that the division was based on their mutual acknowledgement of the share the owner of shared ownership, not on proof of it. So that the vision so they came, they both came and they said we own this piece of land divided between us, the judge will say, where's your proof that you guys own co own this piece of land, if they fail to produce proof that they could own this piece of land? What will the judge say
if one partner wants the division and the other partner does not want the division, he will dismiss them to dismiss them, you know, you don't you don't have proof of CO ownership and you're not agreeing on division. He will dismiss them if both partners will say now we go on this this piece of land and we want to divide the agreement here we wanted divided the judge when divided between them, but what he will do is so that this is not a proof of ownership because when you give a court document that this land was divided between the two of you, this will may be may be used by someone afterwards as proof of ownership, what the judge will do is that he will document that this division
was based on mutual acknowledgement of CO ownership, not approve of ownership.
of course, the shafa is what not accepted us even if they agree they will not accept you know the division, even if they agree until they produce a proof of corners. But for us and bodies we will make the division
If this is for clarification of this point to go ahead, but otherwise, yes.
Because you mentioned you don't have ownership at the boat.
They don't have the proof of ownership.
If the FDA take the oath without having a proof of ownership, we will still document that no proof of ownership was produced
what 30 to 30? Okay, so that's the first type of customer that's enforceable customers. So, the conditions of enforceable FISMA is what When can we enforce the division of property no harm
Okay, second, no need for compensation.
The property itself can be divided based on their shares, no one will need to give monetary compensation to anyone.
Because if you have to give monetary compensation that is a sale transaction, you cannot force people to sell and buy.
And the third one is proof of ownership or co owners.
Okay 123, you will fulfill these conditions, and we will enforce the division.
Then that she said that second type of division is that the vision based on mutual agreement was 30% or 30. We're here Kismet tune our base metal Murphy data. The Alliance has been on CB female who had a
keynote, who brought the men I had the Hema fella is about a
second division by mutual agreement, that division associated with harm to either party such as that they cannot benefit from their share in the way it was intended. You know, we have factory and land if we divide the factory between them, no one can use the factory
you know, if you divide the factory and you give 1/3 of the factory to someone 1/3 of the machines it's it has to be together or whatnot work for instance
or it cannot be divided evenly without one of the partners having to pay a separate compensation to the other in this case the division cannot be imposed on them. However,
how can I do
which means what
it has between them the it is their right. If they have mutual agreement, then they can divided
because mutual agreement
is basically supreme in contracts. mutual agreement is supreme and contracts. Keep in mind keep in mind that even with mutual agreement, if it results in data, if it results in harm, then it would be religiously forbidden, because harm is religiously forbidden harm is religiously forbidden.
But, but then
you know it is mutual agreement so they will be able to do it legally. They'll be able to do it religiously. It is forbidden because harm is religiously forbidden. Okay. Next he says what a fraud can lie Laos Taha cobia Shaka, what is to be happy with a Jew? filmic Ed was woefully mo Zuni. Kayla, what is the Mary Casa
division is simply a sorting out of rights and scrambling of rights sorting of rights is not a safe transaction. So the rules of st transactions will not apply to that division, which division that does not include the safe transaction
in which there is no right to preemption and no option to resend. It is permissible. No right to preemption means what
So far, so far is when if you sell your property, if you sell your property,
I have a partner will have the right to preemption I can say to the buyer, I have various, you know, basically the I have the right to this the right preemption. So
but in if this is sorting out of rights if the division is not a same transaction, so there is no right to preemption here, that the division would be enforceable there is no right
then had no option to resend because if you sell a property, what do you have options, you know, do remember, options to cancel on in the chapters of viewer save transactions. We mentioned so many options to cancel at least one of them, at least according to the honeyberries and shaeffer is one of them is PRL Matadors, which is the PR the option of physical separation before physical separation, I have the right to resend even if I finalize the contract, but we have not physically separated I have the right to take it back at recess in the vision No, once we have divided the properties and he will talk about Korra or tossing the coin you know drawing lots tossing two coins
as a means of the you know after the shares have been divided, then who gets the northern side or southern side? This will be determined by
the drawing loss. Once lots have been drawn, no one has the right to reset
unless someone can come back and prove with Vienna with proof by IANA that the provider committed wrongdoing.
But then, what is he what he's saying here is that Bhisma is not a safe transaction. So, the rules of safe transactions will not apply here that would not be a right to preemption, there is no option to resend and then he says it is permissible to divide items that are measurable by volume on the basis of weight instead and to divide those measurable by weight on the basis of volume instead
What is he trying to say here? Do you remember in the chapters of rubber when we talked about today, but are usually we said that if you have user curious items that are
basically valued by weight, you cannot divide you cannot value them by
like let's say you will sell dates for dates exchange dates for dates, what is requested when you exchange dates for dates
hand to hand equal equal for equal equality you cannot exchange let us say one volume measure of dates for two volume measures of days you cannot do that okay. So, complete equality has to be ascertained. Now, dates are measured by what during the Prophet sallallahu Sallam by weight or Volume Volume not weight okay. So, can you can you exchange dates for dates on the basis of weight not volume.
Now, now, when I say transaction, because you cannot ascertain equality in volume,
you ascertain the quality and weight, but this is an item that is measured by volume not weight.
Since you can ascertain the quality and volume you cannot do that you cannot exchange one weight measure for one weight measure it has to be one volume measure for one volume measure
cloudification just the point is that because the quality may change, no because you cannot ascertain equality and ascertainment of equality is because we say that one of the can
additions of this exchange is to ascertain equality and to do with hand to hand immediate transaction, no deferment, these are two conditions that has that had to be fulfilled. How do you ascertain equality of the two exchange items based on the way they used to measure during the time of the prophet SAW the loss of them
and if it was measured by volume you cannot use weight if it is measured by weight you cannot use volume he is saying this route will not apply in Division because it is not a safe transaction I have this much
base I have dates we call on you know dates can we divide the dates I own 1/3 you own two thirds can we divide the dates on the basis of weight not volume Yes, because that is not a safe transaction, it is a division plasma and plasma is sorting out of rights, unscrambling of rights the rules of sales will not apply to them
Now, he also says
also it is permissible to divide fruits on the basis of estimation of the yield before it's actually harvested. Now, to ascertain equality
in a same transaction in a transaction, you in order for you to ask any equality like
you have to measure the fruits What if you do this by estimation, you know the fruits you estimate that the fruits on the trees are equal to this much wait Can you do this? No You can in a division you can Why? Because it is not a sale transaction. So, there it's the rules of sales are not applicable here.
And the SEC says
what a juice kismat will work is that Aamir Khan vihara
for in Canada who
with vihara Mensa hypothetically Yeah, Joseph, we're in Ghana and Robin walk fee, jazz,
it's permissible to divide the walk for as long as there will be no need for compensation. If some of the property is privately owned and some is worth and the private owner will need to pay compensation then the division is not permissible. But if the manager would have to pay compensation, it is permissible.
Okay, so now the work and
there is a work and a private owner, the worker and the private owner co owned this property. And the private owner co owned this property we set the price of the well is let's change this to 200
and the land is 100.
So this is let us say they mutually agree the whose work was owned by Allah, but who's acting on behalf of the wharf? It's called Nazareth works, the manager of the wharf, the manager of all the work looks after the interests of the work. So
now the manager of the wharf and the private owner, they say we would like to make that division happen.
That is not an enforceable division has to be by mutual agreement because the well it's 200 the land is 100 whoever gets the land will get $50 from the person who will get the well to be fair division. Okay. If the Can we give Can we give that walk
the land and $50
Yes, we cannot give the walk the land and $50 we will have to give the walk
we will have to give them a well and then the workflow will get $50 the private owner, why is this
because at work they cannot sell
work can only buy, but the work they cannot sell
something that is more poof
that is dedicated to Allah cannot be sold. Not all of it not part of it, except in certain cases that we have discussed in the chapters of work. And we've talked about the work of massage in particular because it is the sort of the most
restrictive work is the work of massage, you can sell the massage, except as we said, and the Hanbury method is a fellow who
it becomes of no utility anymore, then it can be sold. So, but
So, in general,
let's not use the well in particular, but let us say a land
that cannot be divided except when the value like this is aligned, if I divide this land, there is no way that this northern side or eastern side will be equal to the western side. So, one piece of the land will be 201 piece of the land will be 100 Okay, I have to give the work the piece that is 200 if the worker is able to pay the private owner $50 to make him up, I cannot give them up for the piece that is 100 and then have the private owner pay $50 to the wealth, because in this case, what is the work for doing selling selling part of their share for $50 setting part of their theater $50 cannot walk
or walk cannot sit
walk we can only buy a walk we can only expand cannot shrink.
Now as we said the walk for me may be able to sell and the Hanbury mother
Pharaoh who once said once it becomes of no utility, then you can sell the work for but then what do you do you take the money and you buy with the money is something that is for the same cause
you know the masjid is of no utility anymore, there is asbestos or something harmful that was found in the masjid people cannot use the masjid anymore, then you take the money and buy another Masjid nearby for the same community serve the same cause and so on. That's the very position what what does the rest of them as a mother have say about this?
You cannot say that no matter what.
But, you know, I know that you know Sheikh Mohammed, automatic for instance.
He he sort of He is known Hanafi authority in our times.
And he bases his fatwah on the Hanbury method in this regard because otherwise masajid will be you know, properties will be abandoned and we'll just keep them
just keep them they're abandoned.
Anyway, so that she then says the demand for dama wood item the year 620. After Hydra says in his book on the under the chapter of division which we are still discussing
whether or directed at
Allah say in Surah Allah who was even after adjusting the shares to make them equitable, he will then cast lots between the partners or lots will be cast between the partners. He who is not comes out indicating entitlement to a particular share. We'll have it and it will be binding. Now, why are we drawing lots here? We divided this piece of land okay. We brought an expert to divided the expert says in order for this land to be divided fairly.
The person the person on the northern side will take
of the land, the person on the southern side will take 1/3 of the land, because the value of the two thirds on the northern side is equal to the value of the 1/3. there on the southern side, let's presume that the expert said that
the building you know, you know, there are apartments here apartments there is different. Okay, so now we have this piece of land, we arrived, you know, this piece of land, we put lots, and then let them draw so that it is completely unbiased. Because whatever they both want, they're equal based on the expert, the value is equal based on the expert, whatever they both want to the one on the northern side or the southern side. What are we gonna do?
This would be determined by drawing lots, passing the Korean drawing lines, then the SEC said, Where do you go any akun Okay, but keep in mind, he says he who's not comes out indicating entitled to a particular share will have it and it will be binding from that time on there, no right to resent.
It's not into the physical separation like in sales, there is no option up here in madness for option a physical separation, once the lots are drawn binding.
Now, would there be any recourse any right to contest it? It will be complicated, you will have to prove with Brianna, that foul play or like something completely wrong took place.
Where do you put any akuna casts in your corner passing would hacking me hadlen WorkCover Valley Cat Cat table, the people doing the dividing, working for the authorities and hacking the router for the authorities must be hardened or trustworthy. And we will come to the translation of Adventureland, the next chapter, under the book of testimonies.
The scribes should also be and the scribes should also be so trustworthy people have to do the dividing and trustworthy people have to document what has taken place. This brings us to the end of the chapter on division. And to recap, division is enforceable. There are two different types of division, there is a enforceable division and non enforceable division. enforceable division is when what is when you can make the division without harm to any partner without need for compensation and with proof of CO ownership. Yes.
Now we will take we have
two more chapters to go over the book of testimonies and then the chapter on those whose testimony is not to be rejected. So we will take smaller breaks because we will have three sessions today. Not too so we will come back.
We will take a four minute break
and come back at 945