Section

If the purchaser disposes of it by making it an endowment, giving it as a gift, or pledging it as security—but not by bequest—the right of pre-emption is forfeited.

His statement, “If its purchaser disposes of it,” means: the purchaser of the share.

His statement, “by making it an endowment,” means by dedicating it as an endowment. That is, after purchasing the share, he makes it an endowment, whether a private or public one. A private endowment would be, for example, if, upon purchasing the share, he says, “This is an endowment for so-and-so,” or, “for my descendants.” In that case, the right of pre-emption is forfeited. A public endowment would be if, upon purchasing it, he says, “This is an endowment for the poor.” The right of pre-emption is likewise forfeited, because the share has been transferred through a contract that does not establish pre-emption. Pre-emption is established only when ownership is transferred in exchange for financial consideration, whereas here ownership has passed to an endowment, and there is no right of pre-emption in the case of an endowment. That is, if one of two partners endows his share of jointly owned land, the other partner has no right of pre-emption, because ownership was transferred without financial consideration.

Similarly, the share may become an endowment merely by virtue of its purchase: this occurs when the money with which the purchaser bought it was compensation for an endowment that had been sold. For example, there is a piece of land jointly owned by Zayd and Amr, and Bakr purchases Amr’s share with dirhams that are the proceeds of an endowment he had sold. As soon as Bakr purchases Amr’s share, it becomes an endowment, because it is compensation for an endowment; and the substitute immediately takes the ruling of that for which it is substituted.

His statement, “or by giving it as a gift,” means that the one who purchased the share gives it to someone else as a gift, in which case the right of pre-emption is forfeited. For if the share had been transferred by gift, pre-emption would not be established. Thus, once it is transferred by the purchaser to another party, and pre-emption is not established by its transfer to that party, the right of pre-emption is forfeited.

His statement, “or by pledging it as security,” means that the purchaser of the share pledges it. For example, land is jointly owned by two partners; one of them sells his share to a third party, and the third party takes out a loan.