The second is that he may do so.

If we adopt this view, he may acquire them at their value as standing trees in both cases, according to some versions of al-Mudawwana. By analogy with the view reported by ʿAbd al-Haqq, however, he may acquire them at their value as standing trees only in the fifth case, where the land was purchased before the palm trees. Success comes from Allah Most High, who has neither partner nor equal.

Section

The sixth case is where someone purchases only the palm trees on condition that he uproot them, after which a man establishes rightful ownership of half the land and half the palm trees. The sale is then annulled with respect to the palm trees remaining in the purchaser’s possession whose ownership was not successfully claimed against the seller, and the purchaser recovers the entire price from the seller. This is because he cannot obtain half of what he purchased unless the seller partitions the land together with the palm trees between himself and the rightful owner. Once this partition takes place, fewer trees may fall to the seller’s share because of the land’s good quality, or more because of its poor quality. The purchaser therefore cannot uphold the purchase of the trees remaining in the seller’s possession, since their quantity is unknown; the sale must consequently be annulled.

This accords with Ibn al-Qāsim’s ruling that it is impermissible to purchase a man’s share of palm trees on condition that they be uprooted while his co-owner is absent. The trees cannot be partitioned separately from the land, so partitioning them together with something else leaves the subject of the purchase uncertain.

Nevertheless, Ibn al-Qāsim—may Allah have mercy on him—stated in al-Mudawwana that if someone purchases the materials of a house on condition that he dismantle and remove them, and a man then establishes rightful ownership of half the house, the purchaser may return to the seller the materials remaining in his possession whose ownership was not successfully claimed. His wording, “may return,” apparently gives the purchaser a choice, allowing him to retain them instead. This statement calls for scrutiny, unless Ibn al-Qāsim was discussing a case in which the land and materials are evenly distributed, with no disparity arising from partition, so that precisely half falls to the seller’s share. This is the meaning of Sahnūn’s statement that this transaction is permissible in some circumstances but not in others.

Ibn al-Qāsim’s answer to this case in al-Mudawwana follows the position that there is no right of pre-emption over the materials. Hence his statement that the purchaser is given a choice. Had he addressed it on the basis that the materials are subject to pre-emption, he would have given the holder of that right a choice before giving the purchaser a choice, in accordance with his established position on this matter, contrary to the view of Ashhab and Sahnūn. Success comes from Allah, who has no partner.