applies, in his view, only to the article actually sold. As for al-Shāfiʿī, he denies pre-emption because a compensatory gift (hiba li-thawāb) is, in his legal school, invalid to begin with. Mālik, however, together with his companions, is unanimous that pre-emption is obligatory in such a gift.
The scholars agree that when a sale is subject to an option period (khiyār), if the option belongs to the seller, pre-emption is not due until the sale becomes irrevocable. They differ, though, when the option is the buyer’s. Al-Shāfiʿī and the jurists of Kūfah declare that pre-emption is binding upon him, for the seller has already detached the share from his estate and removed it from his ownership. Others reply that pre-emption is not yet due, since the buyer does not bear liability; this is the position adopted by a group of Mālik’s disciples.
They have also disagreed about pre-emption in musāqāt (the swapping of one parcel of land for another). Three reports are transmitted from Mālik: permission, prohibition, and a third view that distinguishes between co-owners and outsiders—disallowing it among co-owners but allowing it with outsiders.
THE FOURTH PILLAR
On the actual exercise of pre-emption
The questions here are: by what does the pre-emptor take, how much does he take, and when does he take? The jurists concur that in a cash sale the pre-emptor acquires the property for the purchase price when that price is due immediately.
If the price is deferred, they differ: must the pre-emptor accept the same deferment, or pay the price up-front and thus has a choice? Mālik says he may assume the deferred term, provided he is solvent or brings a solvent guarantor. Al-Shāfiʿī holds that the pre-emptor is at liberty: should he pay in advance, pre-emption takes effect at once; otherwise it is postponed until the term falls due—this is also the tenor of the Kūfan view. Al-Thawrī maintains that the pre-emptor may take only for cash, because responsibility for the price has already passed to the first purchaser. He added: some of us say the property remains with the seller, and if the term matures the pre-emptor then takes it.
Those who extend pre-emption to every compensatory exchange other than sale rule that the pre-emptor pays the value of the share when the counter-value is not quantifiable—such as a share given in a khulʿ settlement. If the counter-value is quantifiable yet not gold, silver, nor a commodity measured or weighed in bulk, he pays the value of whatever was delivered in exchange for the share. When that item is fixed by the Law at a specific amount, he pays that amount—for example, if the share was transferred in satisfaction of the indemnity for a muḍiḥah or a munaqqilah, he pays the prescribed indemnity for a muḍiḥah or a munaqqilah.
As to how much he may take: the pre-emptor may be one person or several, and likewise the person against whom pre-emption is exercised. Where both sides are single individuals, there is no dispute that the pre-emptor must take the whole property or leave it entirely.
If the purchaser is one but there are multiple pre-emptors, the jurists disagree on two matters:
- How the pre-empted property is to be divided among them; and
- Whether differing grounds of co-ownership bar some of them from pre-emption—for instance, when some are co-heirs sharing a single inherited portion while others are agnatic relatives.