Mutarrif and Ibn al-Mājishūn, the governing rationale is that a transaction involving immovable property does not constitute an exchange exempt from pre-emption unless each party receives from the other a share in property in which he already owns a share. According to the apparent meaning of the passage in Ibn al-Qāsim’s recorded hearings from Mālik, however, any transaction involving immovable property, whatever its form, constitutes an exchange exempt from pre-emption according to one of the two views. Thus, there are three views concerning which exchanges are subject to the disagreement over pre-emption, as we have explained.
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Where pre-emption applies, it is apportioned according to ownership shares, as reported from ʿAlī ibn Abī Tālib, may Allah be pleased with him. This differs from Abū Hanīfa’s view that it is apportioned according to the number of co-owners. The correct position is that of Mālik and his companions: it is apportioned according to ownership shares. Since the right arises from ownership, it must be proportionate to the respective holdings, just as income from the property is. Moreover, since its purpose is to avert harm from co-owners, and the harm they suffer is proportionate to their shares, the right of pre-emption that removes that harm must likewise be proportionate to their shares. And Allah grants success.
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The pre-emptor’s recourse lies against the purchaser, not the seller, whether he takes the property from the seller before the purchaser takes possession or from the purchaser after he has taken possession. This is the position of Mālik and his companions, and also that of al-Shāfiʿī. A passage in al-Mudawwana suggests that the pre-emptor may choose to have his right of recourse recorded against either of them. This is not correct; rather, that passage should be interpreted in accordance with the established, explicit position of the school.
Abū Hanīfa said that if the pre-emptor takes the share from the purchaser, his recourse lies against the purchaser; if he takes it from the seller before the purchaser takes possession, his recourse lies against the seller. Ibn Abī Laylā said that recourse lies against the seller in all cases. The correct position is Mālik’s, because the sale between the seller and purchaser has not been rescinded after becoming binding and establishing the purchaser’s ownership of the share. Recourse must therefore lie against the purchaser.
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In our school, the pre-emptor has recourse against the seller only in the case of an investment manager who purchases with funds