has not been divided,” indicate that he prescribed pre-emption only for property capable of division. For property that cannot be divided cannot be said to remain subject to a particular ruling “so long as it has not been divided.” Do you not see that it would be incorrect to say that a human being is subject to a particular ruling so long as he has not been divided?
The companions of Mālik, may Allah have mercy on him, differed on this matter. Some held that pre-emption does not apply to indivisible immovable property, such as a standing tree or date palm jointly owned by two men, in accordance with what the hadith indicates. This is the position of Mutarrif. Others held that pre-emption does apply to such property because it is immovable property. They therefore applied a uniform ruling to this category, even where a particular item cannot be divided, since it belongs to a class of property that can be divided. This is the position of Ashhab, Ibn al-Mājishūn and Asbagh, and one of the two positions reported from Ibn al-Qāsim. For in al-Mudawwana he states that when a mill is sold together with its site, pre-emption applies to the land and the building housing the mill, for their corresponding share of the price. However, Sahnūn reports from him in al-ʿUtbiyya that pre-emption does not apply to the mill’s fixed installations, because they cannot be divided.
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This underlies the disagreement among the later scholars of our school concerning the harm on account of which pre-emption was instituted. Those who hold that pre-emption applies only to divisible immovable property do not identify the harm of joint ownership as its legal cause, since the two co-owners can free themselves of that harm through division. Rather, they say that the legal cause is the harm arising from division. This takes several forms: the property may lose value when divided, and each party may need to install new amenities in his allotted share, thereby incurring expense. Other forms include the expenses and fees specifically associated with dividing immovable property. Not everyone knows how to divide it, so it is generally necessary to hire someone with the requisite expertise. This is a sound legal cause, as the ruling consistently applies when it is present and does not apply when it is absent. Do you not see that pre-emption does not apply to goods divided by measure or weight, since dividing them entails no expense?
Those who hold that pre-emption applies to both divisible and indivisible property say that, in the case of indivisible property, the legal cause is the harm of joint ownership: no co-owner can undertake any transaction or other action concerning the jointly owned property without his partner’s permission. This does not entail granting pre-emption over indivisible items of