all circumstances, whether its partition would injure one of the co-owners or not. A number of Mālik’s companions adopted this view, while another group rejected it; that latter opinion is attributed to Ibn al-Qāsim. According to Ibn al-Qāsim’s position—his refusal to divide anything whose division would damage either party—no pre-emption is due, because splitting a bathhouse would ruin it and it would cease to be a bathhouse. He likewise held that when two men share a single date-palm and one of them sells his share, there is no right of pre-emption, since the tree itself cannot be divided, whereas most of Mālik’s associates maintain that pre-emption does apply in such a case.

Counted among the “principal properties” we have listed are the water-springs sold together with the land, as well as a well sold with it. There is, however, no pre-emption in a well that is sold on its own, nor in a pathway, a male date-palm, or a watercourse. If the well is accompanied by undivided farmland, then pre-emption applies when it is sold along with that land; the same holds true if it is sold with the cultivated black soil that is irrigated together with its orchards. Should a co-owner first sell his share of the land and only later sell his share of the well, his partners have no right of pre-emption in the well; equally, if they have already divided the land and the date-palms and one of them then sells his share of the well, the others have no pre-emption.

Yaḥyā narrates from Ibn al-Qāsim, from Mālik, that pre-emption applies to water which the heirs apportion among themselves in measured bucket-loads (aqlād), even if they are not partners in the lands irrigated by those springs. Mālik said: The people of each single allotment exercise pre-emption among themselves, not the entire group of heirs as a whole; the ruling is the same as for houses and land. As for the male date-palm, the well-known position in Mālik’s school is that no pre-emption attaches to it, although a group of his followers held that it does. Comparable to the male date-palm is the open space (farṣah) which its owners leave for the benefit of neighbours and for passage; no pre-emption applies to it except