a successful claim of superior title, the sale would be invalid, since that stipulation would ultimately amount to purchasing an unknown share ascertainable only after measurement. Success comes only from Allah.”
Section
If he sold him the two-zawj sowing area within the village on the understanding that it contained ten zawj, before its actual area had been established by measurement, the sale contract would make them co-owners only according to the view that the seller has no outstanding obligation in such a sale to deliver the full stipulated measure. This view treats the purchaser’s stipulation that the village contain ten zawj as a term on which the bargain was concluded. If measurement shows that the village contains ten zawj or more, the sale is binding on both parties, and neither has an option to rescind. If it contains fewer than ten zawj, the purchaser may either uphold the sale at the full price or rescind it. According to this view, the purchaser bears the loss if the land is flooded or usurped.
This does not apply according to the view that the seller remains obliged to deliver the full stipulated measure and bears the loss if the land is usurped or flooded before measurement. Under this latter view, the purchaser has no right to any excess beyond the stipulated ten zawj; rather, he becomes a co-owner by virtue of the two zawj he purchased. Thus, if measurement shows that the village contains twelve zawj, he is entitled to only one-sixth of it. If it contains fewer than ten zawj, his price is reduced proportionately.
Consult this principle and the disagreement concerning it in the transmissions of Ashhab, ʿĪsā and Abū Zayd in the Book of Sales: General Matters; in the cases of Sahnūn in that same book and in the Book of Defects; and also in the transmission of ʿĪsā in the Book of Marriage. The purchaser becomes the seller’s co-owner in respect of the two zawj only when he purchases them as an undivided portion of the village after the village has been measured and its actual area established. This is the precise explanation of the issue. Success comes only from Allah Most High, who has no partner.
Section
If someone purchases two zawj as an undivided portion of the village, without the parties specifying how many zawj the village contains, and part of it is then lost through a successful claim of superior title or usurpation before measurement, and we hold that the purchaser is entitled to his two zawj from what remains and becomes the seller’s co-owner in the corresponding proportion, then they must not be compelled to accept this arrangement if either refuses and wishes to rescind the sale. The purchaser may argue, “The part lost through the claim or otherwise taken away was better and more desirable, so I do not agree to take my share from what remains.” The seller may likewise argue, “What remains is better and more desirable, so I do not agree to your taking your share from it.” Success comes only from Allah Most High.