We say: That is true; nevertheless, there is no doubt that a person’s being his own partner is better than having to receive a new partner.

Another example: Zayd and Amr are partners in a piece of land which they have endowed. Amr then sells his share in this land for a reason necessitating its sale. Zayd, it is said, has no right of pre-emption, because if his partner had endowed the land, he would not have had the right of pre-emption; likewise, if he sells it while it is an endowment, Zayd has no right of pre-emption.

The sound view here too is that he does have the right of pre-emption, because when an endowment is sold, it is transferred for monetary compensation. The harm arising from a new partnership in an endowment is greater than the harm arising from a new partnership in unrestricted property, because the partner in unrestricted property can free himself by selling it, whereas the partner in an endowment cannot free himself. Thus, exercising pre-emption in an endowment partnership is more warranted than exercising it in a partnership involving unrestricted property.

In sum, the right of pre-emption is established in both cases. The evidence cited by those who deny it is unsound; rather, the correct view is the generality indicated by the hadith: “The Prophet, peace and blessings be upon him, ruled that the right of pre-emption applies to everything that has not been divided” (1). This is general and includes partnership in unrestricted property as well as partnership in an endowment.

His statement, “nor without prior ownership,” means that the ownership of the partner exercising pre-emption must precede that of the purchaser. Thus, if two people purchase a single right, or purchase a piece of land in one transaction, does either of them have the right of pre-emption against the other? No, because neither one’s ownership preceded the other’s; they acquired ownership of the land in a single transaction,