lapse; because ownership is not transferred by a bequest until after the death of the testator and the acceptance of the beneficiary, if the beneficiary is a specified individual or an identifiable group. Before death, the bequeathed property remains the testator’s property. Thus, if the partner exercises his right of pre-emption, ownership is transferred from the testator’s share to the partner’s share, and the bequest is rendered void, since its subject can no longer be subject to execution of the bequest.

In summary: if the purchaser disposes of what he purchased through a transaction that transfers ownership in a manner to which the right of pre-emption does not initially apply, then the right of pre-emption lapses. But if he disposes of it through a transaction that does not transfer ownership, then the right of pre-emption remains, such as a lease, a bequest, a loan for use, and the like—even a mortgage, according to the sounder view, which is the position of the school, contrary to what the author, may Allah have mercy on him, said.

The second view on this issue is that such a disposition does not invalidate the pre-emptor’s right. Thus, even if the purchaser endows it, gives it as a gift, makes it a dowry, or if a woman gives it as compensation for a khulʿ divorce, this does not cause the pre-emptor’s right to lapse. This is because this share passed from his partner in a manner that establishes the right of pre-emption; hence, the establishment of that right preceded the purchaser’s disposition. When rights conflict, the earlier right takes precedence. We therefore say: the pre-emptor’s right precedes the purchaser’s right and is thus more entitled to be enforced than the purchaser’s disposition. Accordingly, if the purchaser disposes of it by endowing it—even for specified individuals—and then the partner exercises his right of pre-emption, the endowment is void, because the property has passed away from the endower by a right that preceded his own.

The same applies to a gift: if the purchaser gives the share as a gift, we say that the partner may take it by pre-emption, because his right is prior to the disposition.