Abu Hanifa and al-Shafi'i. It is possible that pre-emption is not binding, so as not to split the purchaser's deal, as there is harm in that for him; thus, it is similar to if the pre-emptor wanted to take only a portion of the share. Malik said: Pre-emption is established in both for that reason. Our position is that the sword is not subject to pre-emption, nor is it secondary to that which is subject to pre-emption; therefore, it is not taken through pre-emption, just as if he had singled it out. As for the harm that befalls the purchaser, he is the one who brought it upon himself by combining in the contract that which is subject to pre-emption and that which is not. Furthermore, there is also harm to the purchaser in taking the whole, for perhaps his purpose was to keep the sword for himself, so taking it from him causes him harm without a necessitating cause.

Section: If one sells two shares from two lands in one single deal to one man, and the partner in one is different from the partner in the other, both may take and divide the price according to the value of each. If one of them takes it without the other, it is permitted, and he takes the share that is in his partnership by its portion of the price. It is derived that he has no right of pre-emption, like the issue preceding it. He does not have the right to take both together, because he has no partnership in one of them, nor is it secondary to that which is subject to pre-emption, so it follows the course of the share and the sword. If the partner in both is the same, he may take both or leave both, because he is a partner in both. If he prefers to take one without the other, he may do so; this is the stated view of al-Shafi'i. It is possible that he does not possess that right, and whenever he chooses one, the right of pre-emption for both is dropped, because it was possible for him to take the entire sold item, and thus he does not possess the right to take only part of it, just as if it were a single share. This was mentioned by Abu al-Khattab and some of the companions of al-Shafi'i. Our position is that he is entitled to each one of them for a reason other than the other, so it follows the course of two partners. Furthermore, if it followed the course of a single share, it would be necessary—if they were two partners and one of them abandoned his pre-emption—that the other would have the right to take everything, yet the matter is the opposite.

Section: No one who is unable to pay the price may take by pre-emption; because in taking it without paying the price