by virtue of recovery by a rightful owner, not by virtue of pre-emption, since no share of the price was assigned to it. The other two opinions therefore apply here by the same reasoning, just as they apply to recovery by a rightful owner.

Two of these opinions are expressly recorded concerning insolvency: (first) his statement in al-Mudawwana that the seller has a stronger claim to the fruit than the creditors until it is harvested; and (second) his statement in ‘Īsā’s transmission in the Book of Debtors that the seller has the stronger claim to it until it ripens. The other two opinions may be derived through reasoning and analogy, because he treated the seller’s recovery of his palms as equivalent to recovery by a rightful owner, granting him the stronger claim to the fruit until it is harvested or until it ripens. The same differences of opinion that apply to recovery by a rightful owner must therefore apply here. Had he treated it as a sale, the seller would necessarily have had no stronger claim to the fruit after pollination, without any difference of opinion.

If possession is taken while the palms still bear their fruit, the buyer may recover his expenses for watering and tending from those taking possession, subject to the disagreement already mentioned. If, however, he harvests the fruit after pollination but before it ripens, it constitutes yield belonging to him, and no deduction is made for any of it. Ashhab expressed an opinion that Sahnūn rejected: if the pre-emptor or rightful owner comes forward before the fruit ripens, he is entitled to it at an assessed value reflecting its prospects and risks. This has already been discussed, together with its rationale.

As for the second scenario, where the palms bore pollinated fruit on the day of purchase and a claimant comes forward before the fruit ripens, the claimants have the stronger claim to it as it stands, after reimbursing the expenses of watering and tending, subject to the disagreement already mentioned. If, however, a claimant comes forward only after the fruit has ripened but before it has dried, after it has dried but before it has been harvested, or after it has been harvested—whether it is still available or no longer available—there are three opinions concerning recovery by a rightful owner and pre-emption.

(First) the pre-emptor and the rightful owner take the fruit together with the palms, even if it has been harvested, while the buyer recovers his expenses for watering and tending. Ibn al-Qāsim stated this in keeping with his position on return on account of a defect. Ashhab also stated it and transmitted it from Mālik concerning pre-emption in Ibn al-Mawwāz’s book. Its rationale is that acquisition by pre-emption is treated as recovery by a rightful owner.

(Second) the fruit constitutes yield belonging to the buyer. This is Ashhab’s position in the Book of Defects.

(Third) it remains with the buyer for the share of the price attributable to it. This is Ibn al-Qāsim’s opinion in the Book of Pre-emption.