—even though the price remains a debt in his liability. Alternatively, if the judge rules in his favour after the pre-emptor appears in court and proves his claim, then—on the sounder opinion—ownership is likewise transferred. According to the established view, however, the pre-emptor may not acquire a share he has never seen.

Section
If the original purchase was made for a fungible commodity, the pre-emptor must pay an equivalent amount of that same commodity. When it was bought for a non-fungible asset, he pays its market value on the day of sale—though another view sets the valuation at the point when any option period ends and the sale becomes final. Where the price is deferred, the stronger position is that the pre-emptor may choose: either to pay immediately and take possession at once, or to wait until the due date and then take.

If the fractional share was sold together with other property, the pre-emptor pays only the proportionate part of the total price. When the share served as a woman’s dower, it is taken for the standard dower of a woman of comparable status; the same rule applies if it was the consideration in a khulʿ divorce.

Should the purchase price have been indeterminate and the commodity perish, the right of pre-emption lapses. If the pre-emptor then specifies a particular amount while the buyer claims that no fixed amount was ever known, the buyer must swear to his lack of knowledge. If the pre-emptor alleges that the buyer did know the amount but himself gives no figure, his claim—on the preferred view—is not admitted.

If it becomes clear that the price paid was itself unlawfully owned, then, where that price was a specific identified item, the sale and the shufʿa are both void; if it was unspecified, the item is simply replaced and the sale and the shufʿa remain valid. When the pre-emptor unknowingly—and, on the sounder view, even knowingly—tenders misappropriated property, his right of shufʿa is not nullified.

Any disposition the buyer makes of the purchased share—sale, endowment, lease—is legally effective. The pre-emptor may, however, annul transactions that do not themselves confer a new right of shufʿa, such as an endowment, and then take the property. For dispositions that do entail shufʿa, such as a subsequent sale, he has a choice: either to take under the second sale or to rescind it and take under the first.

If the buyer and the pre-emptor disagree about the purchase price, the buyer’s word is accepted; the same applies if he denies the sale altogether or denies that the claimant is a co-owner. Should the co-owner admit the sale, the stronger view is that shufʿa is established. The price is then handed to the seller if he has not acknowledged receipt; if he has, the scholars differ—does the money remain with the pre-emptor, or does the judge take it and hold it in trust? The issue parallels an earlier discussion in the chapter on acknowledgements.

Where several people are entitled to shufʿa, they take in proportion to their respective shares; another view distributes equally, head for head. If one of two partners sells half his share to one person and the remaining half to another, the right of shufʿa attaches only to the first half.