Shuyu' (undivided common ownership: sale, division, zakat, pledge, gift, lease and endowment of a shared thing)

Shuyu' is from shaa, to spread and become known; one says that a man's share is undivided throughout the house when it is attached to every part of it and not divided out. For the jurists it is a right in one thing held by two or more persons without the shares being marked off; they call it partnership (shirka). ¹

There is no dispute that an undivided part of a house, such as a third, may be sold; that a measure from a heap of equal parts may be sold; and that ten shares of a hundred may be sold. The judge must divide common property at the request of the partners or some of them, since each partner benefits from the other's share before division; when one asks to use his own share, the judge must grant it, unless the division would destroy the purpose of the property. The majority hold that the division is not granted in that case even by agreement, as it wastes property; the Hanafis hold that if the partners divide by agreement the judge does not stop them. ^{1 2}

If two or more persons who are liable to zakat hold a sum that carries zakat in common, as heirs or as buyers, the majority treat them as one owner in paying zakat. ²

The Malikis, Shafi'is and Hanbalis allow the pledge of an undivided share of land or animals, whether the rest belongs to the pledger or to someone else, since the partner is not harmed; possession is given by handing over the land and by moving movables. The Hanafis do not allow it, because an undivided share cannot be distinguished, and a pledge requires lasting detention, which an undivided share cannot give since use must be taken by turns. Most jurists allow the gift of an undivided share, divisible or not and to the partner or another. The Hanafis forbid the gift of a divisible undivided share, since full possession cannot be given, and allow it where the part would not be useful once divided. ^{2 3}

Leasing an undivided share to a partner is agreed. Leasing it to a stranger is allowed by the Malikis, Shafi'is, Abu Yusuf and Muhammad, and in one report of Ahmad, since a lease is a kind of sale and the share can be delivered by taking turns. Abu Hanifa, Zufar and the preferred Hanbali view forbid it, since it cannot be delivered without delivering the partner's share, over which the lessor has no authority. ³

The Malikis, Shafi'is, Hanbalis and Abu Yusuf allow the endowment of an undivided share, citing the report of Ibn 'Umar that 'Umar held land at Khaybar and the Prophet ﷺ told him to hold its base and give its yield in charity; the endowment holds back the base and gives its benefit, and this happens in an undivided share as in a divided one. Muhammad of the Hanafis forbids it for what can be divided, and allows it for what cannot be divided, by consensus. ^{3 4}

When two or more own land in common and one sells his share to a stranger, the other has the right of pre-emption, by consensus. ⁴