the purchase of a garment which the buyer selects from garments of a single kind, even if their qualities differ. He did not permit the lease when the land varied in quality, just as he did not permit purchasing a garment on condition that the buyer select it from different kinds. According to the view other than Ibn al-Qāsim’s, this was impermissible even when the land was uniform, because preferences might differ regarding its various parts. This accords with the position that purchasing garments by selection is impermissible unless they are all of one kind and one quality. The evidence supporting our interpretation of this question is that it admits four possible arrangements:

First: the lease stipulated that the lessor would give him land wherever the lessor wished.

Second: it stipulated that they would draw lots for the land, and he would take the portion allotted to him.

Third: the matter was left unspecified.

Fourth: it stipulated that the lessee could choose and take land wherever he wished.

As for an arrangement allowing the lessor to give him land wherever he wished, or requiring the lessee to take whatever portion fell to him by lot, neither jurist can have been discussing either arrangement, since no scholar permits this. Nor can they have been discussing a sale in which the matter was left unspecified and governed by the rules of co-ownership. Had the sale been concluded on that basis, both would necessarily have deemed it valid, whether the land varied in quality and fertility or was uniform in these respects, as we have explained. The only remaining possibility is therefore our interpretation: that the sale was concluded between them on condition that the lessee could take the number of cubits he had leased wherever he wished within the land, as we have explained. The sale in this case is invalid only if the extent of the land represented by the two zawj is unknown. Ibn al-Qāsim expressly stated this in the report transmitted from him by ʿĪsā in al-Mudawwana.

Section
[Ibn Rushd’s fatwa invalidating the judgment of the judge of Córdoba in a pre-emption case]

Mālik’s position—may Allah have mercy on him—that no right of pre-emption applies in this case is sounder than Ashhab’s position