the land, al-Mudawwana states that the rightful owner of the land may acquire the palm trees from the purchaser at their value as uprooted trees. This is not by virtue of pre-emption, since he has no joint ownership with the purchaser in them, but because the Messenger of Allah ﷺ said: “There must be neither harm nor reciprocating harm.” Alternatively, he may leave the purchaser free to uproot them. This accords with Ibn al-Qāsim’s position that structures may validly be purchased for dismantling, even though the owner of the plot has the right to acquire them at their value as dismantled materials. According to the view that such a purchase is impermissible, however, the sale is rescinded, the structures revert to their seller, and the rightful owner of the land has no claim to them.
Sahnūn said that the circumstances must be examined, since the seller of the materials must either have usurped the land or purchased it. If he usurped it, the rightful owner may, if he wishes, pay him—meaning the seller, who is the usurper—the value of the palm trees as uprooted trees and take them; the purchaser’s purchase is then annulled. Alternatively, he may relinquish them to be uprooted. If the seller was not a usurper, then the rightful claimant … The purchaser is entitled only to recover from the seller the price he paid him for the palm trees for uprooting, since they have been reclaimed from him. This is like someone who sells an item for one hundred, then sells it to another person for ninety, after which the first purchaser takes possession of it. The second purchaser is not entitled to recover from the seller the price received from the first purchaser; he may recover only the price he himself paid, since the item has been reclaimed from his possession.
If the rightful owner of the land says, “I will not pay him the value of the building,” the seller is told, “Pay him the value of the land as bare land.” The sale of the palm trees to the purchaser then remains valid, and he uproots them in accordance with the terms of his purchase. If the seller also refuses to do this, he and the rightful owner become joint owners of the land and the palm trees: the seller’s share is based on the value of the standing palm trees, and the rightful owner’s share on the value of the bare land. The purchaser’s purchase is annulled with respect to whatever share of the materials falls to the rightful owner of the land, but remains valid with respect to the share falling to the seller, provided that the latter receives the greater part. The purchaser recovers from the seller the proportion of the price corresponding to the share falling to the rightful owner.
If the share falling to the seller is not the greater part, such that the purchaser would be entitled to reject the purchase, he may not elect to retain it, even if the fractional share is known. This is because the actual portion that will fall to him upon partition is unknown, as these materials can only be partitioned together with the land. There is disagreement over this underlying principle in several books of al-Mudawwana.
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If rightful ownership of half the land is established, the rightful owner may, according to Ibn al-Qāsim’s position, acquire half the materials—those corresponding to the half of the land reclaimed—at their value as dismantled materials. As for the other half,