does not know the claimant to be the owner of the share he has cited as the basis of his pre-emption. If the buyer refuses to swear, or if evidence is produced, the judge asks him: “Did you in fact buy the property or not?” Should he deny the purchase, the judge tells the pre-emptor: “Produce your proof.” If he is unable, the buyer is again put under oath, saying: “By Allah, I did not buy it,” or: “By Allah, no one possesses against me in this house any right of pre-emption on the ground he has alleged.”
Disputes over pre-emption may be heard even when the pre-emptor has not brought the price to the court session. Once the judge rules in his favour, however, he must then produce the price. The pre-emptor retains the right to return the house on account of a latent defect (khiyār al-ʿayb) or after inspection (khiyār al-ruʾya).
If the pre-emptor summons the seller while the property is still in the seller’s hand, he may litigate against him for pre-emption. The judge must not hear the evidence until the buyer is present; then, in the buyer’s presence, he annuls the sale, awards the property to the pre-emptor over the seller, and places the liability for any subsequent defect or eviction upon the seller.
Should the pre-emptor, upon learning of the sale and while able to do so, fail to summon witnesses, his right lapses. The same applies if he does summon witnesses in that very sitting yet does not take their testimony before either of the contracting parties or at the property itself. Likewise, if he accepts compensation in settlement of his pre-emption right, the right is void and the compensation must be returned.
If the pre-emptor dies, his right of pre-emption is extinguished; if the buyer dies, it is not. Should the pre-emptor sell the share that grounds his right before judgment is rendered in his favour, his pre-emption lapses. When the seller’s agent conducts the sale and he himself is the pre-emptor, he has no pre-emption, and the same holds where the pre-emptor has stood surety (ḍamān al-darak) for the seller. By contrast, when the buyer’s agent purchases the property, he may still exercise pre-emption.
Where a sale is concluded with an option clause, the pre-emptor has no right so long as the option remains; once it is waived, pre-emption becomes due. If the property is bought subject to an option in favour of the buyer, pre-emption is due from the outset.
A house purchased under an invalid contract carries no right of pre-emption, and for every