the seller of the materials had himself acquired them by purchase, the rightful owner is told, “Pay him the value of the materials as standing structures.” If he does so, their sale is annulled. If he refuses, the seller is told, “Pay him the value of the plot as bare land.” If he does so, the plot becomes his, while the materials belong to the purchaser. If they agree on a permissible arrangement concerning the two, so be it; otherwise, the whole property is sold and they divide the proceeds according to their respective values. If the seller refuses this as well, they are required to become joint owners as explained above. The sale is annulled with respect to the portion of the materials that passes to the rightful owner and remains valid with respect to the portion that passes to the seller, again as explained above.

Section

The fourth case is where someone first purchases palm trees on condition that he uproot them, then purchases the land, after which a man establishes rightful ownership of half the land and half the palm trees. The fifth is where someone first purchases the land, then purchases the materials in a separate transaction, after which a man establishes rightful ownership of half the land and half the palm trees. There are three positions concerning these two cases:

The first is that there is no right of pre-emption over the palm trees. This is the position of Ashhab and one of Ibn al-Qāsim’s two positions in al-Mudawwana.

The second is that there is a right of pre-emption over them. This is the other position of Ibn al-Qāsim in al-Mudawwana.

The third is that there is a right of pre-emption over them if they were purchased before the land, but not if the land was purchased first. This is the position preferred by Muhammad ibn al-Mawwāz.

According to the position affirming the right of pre-emption over the palm trees, the rightful owner may acquire half the land and half the palm trees by pre-emption for half of each purchase price. If he wishes, he may acquire half the land by pre-emption and leave half the palm trees. In the fourth case, the purchaser must then uproot them; in the fifth, he retains his rights in them, since he did not purchase them on condition that he uproot them. Alternatively, the rightful owner may acquire the palm trees by pre-emption and leave the land.

According to the position denying any right of pre-emption over the palm trees, there are two views as to whether he may acquire them at their value on the basis of the Prophet’s statement (peace and blessings be upon him): “There must be neither harm nor reciprocating harm.”

The first is that he may not do so.