a gift or donation to the purchaser, he is entitled only to his own share of it, while the purchaser is entitled to the shares of those who relinquished their rights. If, however, they merely abandoned their right of pre-emption out of unwillingness to exercise it, the one who retains his right is entitled to the whole.

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If, under this view of Asbagh, the purchaser validly acquires by gift the share of the person relinquishing his right, and none of the other pre-emptors may take it, then the same reasoning applies to a sale: it places the purchaser in the position of the pre-emptor who sold his right of pre-emption. The other pre-emptors would therefore have no right of pre-emption against him, unless they have equal standing with him, in which case they would be entitled to their respective shares.

This is how Ibn Lubāba interpreted Ibn al-Qāsim’s report from Mālik that a man may neither sell nor give away a right of pre-emption that has accrued to him. He said that this meant transferring it to someone other than the purchaser. In support of his interpretation, he adduced a report from the Book of Claims and Settlement, which states: “He may sell his right of pre-emption to the purchaser after the sale has become binding, before exercising that right, but he may not sell it to anyone else.” Something similar is also related from Mālik through Ashhab: “He may not sell it to anyone other than the purchaser before exercising his right of pre-emption.” His own preferred view, however, was that the right of pre-emption should neither be sold nor given away, whether to the purchaser or to anyone else. This is the correct position.

The reports he adduced are not unequivocal. They may be understood as meaning only that, once the sale has become binding, it is permissible to accept goods from the purchaser in return for relinquishing the right of pre-emption in his favour. This was called a sale because it has something of the character of a sale. Asbagh’s view is anomalous and far removed from sound legal reasoning.

Ibn Lubāba also related that he saw Ibn al-Habbāb drawing up a deed for himself to purchase a man’s share in a property, together with the right of pre-emption that had accrued to that man over another share in the property which had previously been sold. He said: “When the deed was completed, he said to me, ‘This is one of those rare deductions which, by Allah, no one but us knows.’” By “us,” he meant himself and me.

The conclusion, then, is that a pre-emptor may neither give away nor sell his accrued right of pre-emption to anyone other than the purchaser. There are two views on whether he may give or sell it to the purchaser:

The first is that this is permissible, that the purchaser secures what he has purchased, and that no one other than the seller