the second view is its analogy with a sale, since both the buyer and the pre-emptor have a choice. It is reported from Ashhab, concerning pre-emption and recovery by a rightful owner, that the fruit is taken at an assessed value reflecting its prospects and risks. His reasoning is that the expenses of watering and tending may exceed the fruit’s value; yet, had the buyer harvested it, he would have had no right to recover those expenses.

Section

If the buyer harvests the fruit, it constitutes yield belonging to him if he purchased the palms before they bore any fruit. If, however, he purchased them while they bore fruit, it does not constitute yield belonging to him. The pre-emptor deducts its share of the price and takes the palms for the share attributable to them. Likewise, where a rightful owner recovers the property, the seller deducts the fruit’s share, so that the buyer recovers from him only the share attributable to the sound palms. In insolvency, the claimant likewise deducts the fruit’s share and takes the palms for the share of the price attributable to them, while claiming a proportionate distribution alongside the other creditors for the share attributable to the fruit.

Section

If, however, a claimant comes forward after the fruiting season, there are four opinions: (first) they have no right to the fruit after pollination, and it constitutes yield belonging to the buyer, for which no deduction is made; (second) they have the stronger claim to it until it ripens; (third) they have the stronger claim to it until it dries; and (fourth) they have the stronger claim to it until it is harvested.

Of these opinions, two are expressly recorded concerning recovery by a rightful owner: (first) the statement in Ibn al-Mawwāz’s book that the rightful owner has the stronger claim to the fruit until it dries; and (second) Abū Zayd’s report from Ibn al-Qāsim that he has the stronger claim to it until it is harvested. (The third opinion), that he has no right to it after pollination and that it constitutes yield belonging to the buyer, was stated by Asbagh concerning return on account of an invalid sale; there is no distinction between the two cases. (The fourth opinion), that he has the stronger claim to it until it ripens, was stated by Ibn al-Qāsim concerning return on account of a defect; again, there is no distinction.

Two of these opinions are expressly recorded concerning acquisition by pre-emption. The first is the view of some Medinese scholars recorded in al-Mudawwana, as well as that of Ashhab and most transmitters: the pre-emptor has no right to the fruit if he does not assert his claim until after it has been pollinated. This follows either from treating acquisition by pre-emption as a sale or from regarding the fruit as yield belonging to the buyer once it has been pollinated. (The second) is his statement in al-Mudawwana that the pre-emptor has the stronger claim to it until it dries. Here, the pre-emptor takes the fruit