چکیده:
Can a claim, like an object, be described as undivided? Yes and no; this is the response of the jurists. In fact, on one hand, they have answered this question affirmatively, and on the other hand, they do not consider the effects of indivisibility to be applicable to a claim, except in a limited manner. Why? The present article first examines the concept and effects of an undivided claim from the perspective of jurists to prove that the jurists' answer to this question is affirmative in appearance but negative in reality. Then (in the sections related to the basis of reference, division, and conclusion), it addresses the reason for this: the hidden role of equity is the cause of this apparent contradiction; the reality is that in Islamic law, much like French law, an undivided claim (at least in the absence of mutual consent) does not exist. However, the application of rules of equity has guided jurists to accept some effects of indivisibility, and this can be considered an advantage in comparison. On the other hand, the role of the jurists' rational arguments in designing the legal system of undivided claims is also noteworthy.
خلاصه ماشینی:
Based on the general rules of indivisibility, the answer to neither of these two questions is affirmative: every atom of the undivided property belongs to all partners, and possession of any part of it is not possible except with the consent of others; therefore, unless one of the creditors has given power of attorney for collection to another, the payment of all or part of the claim must be made to all creditors in order to be valid.
2. When one of the creditors collects a portion of the claim from the debtor and then pays the share of his partner, in this case, it is natural that the first partner will no longer have the right of recourse against the second partner, otherwise this circularity would continue (Fatawa al-Hindiyya, Vol. 2, p.
However, this basis, apart from being unacceptable in the case of monetary debts—which are the most important instance of undivided claims—is inconsistent in many respects with the effects that jurists have considered for recourse: based on this basis, the delivery of even a part of the subject of the claim to one of the creditors should not be valid, whereas undoubtedly each partner has the right to demand payment of the claim from the debtor regarding his own share, and furthermore, in the event of the loss of the received portion, the recipient must be liable to his partner, and we have seen that this is not the case.
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