a man buys a partner’s share for ten thousand riyals. Then, during the option session, after the contract has been concluded, the buyer says, “It is too expensive, and I will not take it except for nine thousand.” The pre-empting partner then takes it for nine thousand. The converse is likewise: if he sold it for nine thousand, but during the contract session the seller said, “The price is too low; I want it to be ten thousand, otherwise I will rescind the contract,” and the buyer agrees and purchases it for ten thousand, then the pre-empting partner takes it for ten thousand. What matters, then, is the amount upon which the contract finally settled, not the amount for which it was initially concluded, because the price may be increased or reduced during the option session or under an option stipulated in the contract.

The proof for the validity of pre-emption is the hadith of Jabir: “The Prophet ﷺ ruled that the right of pre-emption applies to everything that has not been divided.” (1) This ruling is one of judicial judgment and general legislation. The Prophet’s ﷺ rulings may be judicial judgments and legislation that apply generally to the Muslim community, or they may be rulings based on a particular interest and confined to their own time. An example of the first is the hadith under discussion. An example of the second is that the Prophet ﷺ awarded the slain enemy combatant’s spoils to the one who killed him in jihad. (2) Such spoils are the clothing and the like that the slain disbeliever was wearing. Was his ruling in this matter a judicial judgment and legislation, or was it a ruling concerning a particular case and interest? If we say the former, then the spoils belong to the killer in every circumstance, whether or not the commander assigns them to him. If we say the latter, then awarding the spoils to the killer is left to the imam or the army commander. Pre-emption, however, is a general judicial ruling and legislation.