Chapter on Pre-emption

Pre-emption is the entitlement to take, from the one to whom it has been transferred for financial consideration, one’s partner’s share, at the price upon which the contract was concluded and settled. …

His statement, “pre-emption,” is derived from shafʿ, which means making one into two and is the opposite of witr (one). It is called this because the partner joins his co-owner’s share to his own property, thus making what was single into a pair.

In technical usage, he says: “It is the entitlement to take one’s partner’s share from the one to whom it has been transferred”—that is, the share. An example is two men who jointly own a piece of land, and one of them sells his share to a third party. The partner who did not sell then has the right to take that share from the purchaser against his will and add it to his own property, such that the entire land belongs to the first partner, the one who did not sell.

His statement, “the entitlement to take,” is, in fact, open to criticism in this definition. For pre-emption is, in reality, the taking of the share itself, not merely an entitlement, because if the one entitled does not take it, pre-emption is not established. However, he is entitled to take it only when certain conditions are met. Thus, the correct definition should be: “Pre-emption is the taking of a partner’s share from the one to whom it has been transferred,” and so on, without saying “the entitlement,” for there is a difference between entitlement and taking possession. Thus, if one of the two partners sells his share, the other partner is entitled; but if he approves the sale and does not take the share, is there then any pre-emption? No. Therefore, the definition is not sound. The correct wording is: “the taking of one’s partner’s share.”