for pre-emption. Without citing any transmitted ruling, we issued a fatwa in this case, based on analogy and legal reasoning, that the claimant had no right of pre-emption against him. The purchaser of the two zawj had already presented his case to the judge, who told him, “You have a right of pre-emption,” and promised to rule in his favour. When the judge learned of our opinion, he rejected the fatwa, thinking it mistaken, and took the matter up with me. I argued against his position and demonstrated the soundness of ours. When he could no longer answer the argument and could not rule contrary to the fatwa, he withdrew his assertion that pre-emption applied. Instead, he said that what defeated the claim was the invalidity of the sale of the two zawj on the terms described.

The jurist Ibn al-Qāsim then asked him to rule in his favour by dismissing the pre-emption claim brought against him, on the basis of the view the judge had adopted. The judge ruled accordingly and called upon us to witness his judgment and ruling. He maintained that, in his view, the sale was invalid because the total area of the village’s land was unknown. Since the purchaser had not stipulated a right of selection, he had purchased an undivided share. It was therefore as though he had purchased an unknown share whose extent—whether a third or a quarter—could only be determined after measuring the village’s land.

This is incorrect. What he purchased does not increase if the village’s land is more extensive, nor decrease if it is less extensive: he purchased only two zawj as an undivided holding in the village’s land. If its measured area proves to be ten zawj, he owns one fifth; if it proves to be eight, he owns one quarter. One quarter of eight and one fifth of ten are the same. There is therefore no undue uncertainty or lack of knowledge in this transaction. The sale is valid provided that he has inspected the village’s land and knows its good and poor portions.

Some scholars of our time have held that such a sale is impermissible according to Ibn al-Qāsim’s position in al-Mudawwana if the land varies in quality, and according to the other position reported there even if it is uniform. They drew an analogy with the two positions in the Book of Land Leases concerning leasing land for cultivation. They maintained that the reason for prohibiting this—according to Ibn al-Qāsim when the land varies, and according to the other view even when it is uniform—is that the law requires partition. It is therefore as though the purchaser had bought whatever portion would fall to him upon partition.

This argument is plainly unsound. If that reasoning were valid, Ibn al-Qāsim would not have permitted the lease when the land was uniform, nor would he have permitted the purchase of an undivided share in a house or land, since the law requires partition and the purchaser would then receive whatever portion fell to him by lot. Yet the scholars unanimously agree that such a purchase is permissible.

The meaning of the case in al-Mudawwana is simply that the lease was concluded on the condition that the lessee could choose and take land from whichever location he wished. Ibn al-Qāsim permitted this when the land was uniform, even though preferences might differ regarding its various parts, by analogy with their ruling permitting