and each of the two contracting parties retains the right to rescind; if that right is waived, pre-emption at once becomes due.
If a dhimmī buys a house in exchange for wine or swine and the pre-emptor is likewise a dhimmī, he may take the property by handing over equivalent wine and the value of the swine. Should the pre-emptor be a Muslim, however, he must pay the assessed value of both the wine and the swine.
There is no pre-emption in the case of an outright gift unless a counter-consideration has been explicitly stipulated.
When the pre-emptor and the purchaser dispute the price, the purchaser’s word is accepted; yet if they both produce evidence, the evidence of the pre-emptor prevails according to Abū Ḥanīfa and Muḥammad ibn al-Ḥasan.
If the purchaser claims a higher price while the seller asserts a lower one and the price has not yet been paid, the pre-emptor acquires the property for the amount stated by the seller, the excess being regarded as a remission in favour of the purchaser. If the price has already been received, the pre-emptor must pay the amount claimed by the purchaser, and the seller’s statement is disregarded.
Should the seller remit part of the price to the purchaser, that remission also benefits the pre-emptor; if he remits the entire price, it does not. Any voluntary increase that the purchaser pays over the agreed price is not binding upon the pre-emptor.
If several pre-emptors appear, the property is divided equally among them, one head for each, without regard to the differing sizes of their respective holdings.
When a house is bought with merchandise, the pre-emptor takes it by paying its market value; if it is bought with something sold by measure or by weight, he must provide its like.
If real property is exchanged for real property, the pre-emptor acquires each of the two pieces by paying the value of the other.
When the pre-emptor is informed that the property was sold for one thousand and, on that basis, waives his right, but later discovers that it was actually sold for less, or for wheat or barley whose value is one thousand or more, his waiver is invalid and he still enjoys the right of pre-emption. If, however, it turns out that the sale price was one thousand dinars, he no longer has any pre-emption.
If he is told that the buyer is a particular person and, relying on that, waives his right, then learns that the buyer was someone else, his right of pre-emption remains.
Whoever buys a house on behalf of another is the defendant in any pre-emption claim until he turns the property over to the principal.
If someone sells a house but withholds a strip one cubit wide along the boundary adjoining the pre-emptor, the latter has no pre-emption. Likewise, if a fractional share is first sold for a price and the remainder is later purchased, the neighbour’s pre-emption applies only to the first share, not to the second.
When a house is bought for a stated price and the purchaser subsequently hands the seller a garment in lieu of that price, pre-emption is reckoned against the price, not against the garment.
According to Abū Yūsuf, employing legal stratagems to eliminate pre-emption is not blameworthy, whereas Muḥammad, may Allah have mercy on him, said