Pre-emption applies to divisible property, not to indivisible property. Ibn Lubāba said that the case in al-Mudawwana concerns a well with neither surrounding space nor land, whereas Yahyā’s narration concerns a well with surrounding space and jointly owned land irrigated in allotted turns. Judge Abū al-Walīd held that these are conflicting positions, and that the disagreement follows the disagreement concerning indivisible property, such as a palm tree or another tree jointly owned by several people: a spring or well cannot be divided, just as a palm tree or another tree cannot be divided. The scholars whom I knew used to say that these are conflicting positions, and that the disagreement follows Mālik’s differing statements concerning things attached or connected to land, such as structures and palm trees sold separately from the land, leases, and similar matters. Allah grants success.

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As for structures, there is no disagreement that pre-emption applies when they are sold together with the underlying property, since they are accessory to it. There are, however, two views inferable from al-Mudawwana on whether pre-emption applies when they are sold and a subsequent claim of rightful ownership entitles the claimant to a share in them, or when one of two partners sells his share in the structures separately from the underlying property, their uniformity being such that the sale is valid, since they must be partitioned together with the underlying property.

Likewise, if standing structures belong to two partners while the land belongs to someone else, and one partner sells his share in the structures, the other partner has a right of pre-emption, subject to the disagreement already mentioned, if the landowner declines to acquire them. The landowner has priority over him, not because he holds a right of pre-emption, but because the Prophet, peace and blessings be upon him, said:

“There must be neither harm nor reciprocating harm.”

There is disagreement here over the party from whom the landowner acquires the structures and the amount he pays for them. One view is that he acquires them from the purchaser at their value as dismantled materials; another, at the price the purchaser paid; and another, at whichever is lower, their value or the purchase price. Another view is that he acquires them only from the seller, at their value as dismantled materials or at whichever is lower, that value or the purchase price. The sale between the seller and the purchaser is then rescinded, and the purchaser recovers from the seller the price he paid him. All these views have been advanced as interpretations of al-Mudawwana. The most apparent of these interpretations is that he acquires them only from the seller at whichever is lower, their value or the purchase price, while the stronger view