What happens if the parties cannot agree on the disposition of the land with permanent planting/building?
General Chapter
Al-Mughni
Book of Loan for Use
Primary text
If both parties agree to a sale, the land is sold including its planting/building. Each party receives their due share of the value. The value of the land without improvements is determined, and the total enhanced value is established. The lender receives the share corresponding to the unimproved land value, and the borrower receives the rest. If they refuse to sell, they remain as they are. The lender may enter the land as they wish, using it in a way that does not harm the planting or building, but the borrower cannot utilize the planting/building. The owner of the planting/building may only enter for necessity, such as watering or maintenance of the produce, as permission to plant implies permission for its upkeep and fruit collection. Entry for mere viewing is not allowed, as the lender has revoked permission for use.
Supporting text
Each party may separately sell their respective property rights; the buyer assumes the status of the seller. Some followers of Al-Shafi'i argue the borrower cannot sell the trees because their ownership is not firmly established, given the lender can reclaim them at any time for their value. However, lack of firm establishment does not preclude sale, similar to the pre-emption right or dower before consummation.