If the property subject to pre-emption has been sold to two or more purchasers and the pre-emptor wishes to proceed against only one of them, Ibn al-Qāsim says that he must either take the whole or leave it altogether. Abū Ḥanīfah and his associates, as well as al-Shāfiʿī—and the same is reported from Ashhab—allow him to pre-empt against whichever purchaser he prefers.
Should two men sell a fractional share of property to a single buyer and the pre-emptor seek to act against the share of one seller to the exclusion of the other, Abū Ḥanīfah disallows this, whereas al-Shāfiʿī permits it.
When there is more than one pre-emptor—i.e., several co-owners—and some of them wish to exercise the right of pre-emption while leaving the remaining shares in the buyer’s hands, the majority hold that the buyer may say to the partner, “Either pre-empt the whole or desist.” The pre-emptor may not restrict his claim to the measure of his own share unless the buyer agrees, and he may not compel the buyer to accept a partial pre-emption without the buyer’s consent.
Aṣbagh, from among Mālik’s companions, states that if certain partners waive pre-emption as a kindness to the buyer, the remaining pre-emptor may take only his own portion.
Within the Mālikī school there is no dispute that, where some pre-emptors are absent and others present, the present partner may not take only his own share; he must either take the whole or leave it. When the absentee returns, he may choose whether to take or to forgo the purchase.
All the jurists agree that a prior partnership is a condition for pre-emption. They differ, however, on whether the partnership must still exist at the moment of sale and whether it must have been firmly in place before the sale occurred.
First case: the would-be pre-emptor is not a partner at the time of sale—conceivably because he delayed exercising the right for a reason that does not extinguish it until he sold the very share that had made him a partner. Ashhab reports two opinions from Mālik: on one occasion Mālik said the man still has the right of pre-emption, on another that he does not. Ashhab preferred the latter view, which accords with the position of al-Shāfiʿī and the Kūfans, for the aim of pre-emption is to remove the harm of co-ownership, and this man is no longer a co-owner.
Ibn al-Qāsim, by contrast, holds that he still has the right provided he acts immediately, for in his view the right that accrued to him is not annulled by his sale of his own share.
Second case: a person becomes entitled to a fractional share of land in which, before his entitlement matured, another share had already been sold—does he have the right of pre-emption? Some jurists say yes, because the partnership that grounds pre-emption preceded the sale, whether or not the property was physically in his hand. Others say no, for his title to the partnership is established only on the day his entitlement matures; they note that he cannot claim the rents collected by the buyer.
Mālik says: if a long time has elapsed, there is no pre-emption, but if only a short time has passed the right remains—an instance, he notes, of istihsān (equitable preference).
Regarding the time at which one may act and whether the right persists: suppose two persons are entitled to pre-emption, one present and one absent. As for the absentee, the scholars are unanimously agreed that his right stands so long as he is unaware of his partner’s sale. They differ, however, if he learns of the sale while still away: some say his right lapses, while others say it does not.