Mālik’s position

The evidence he cites is the report transmitted from the Prophet—may Allah bless him and grant him peace—through Jābir, in which he said:

“The neighbour has the strongest claim to that which adjoins him,”
or, in another wording,
“His right of pre-emption is to be awaited if he is absent.”

Moreover, the absentee is in most cases physically prevented from exercising pre-emption, and therefore deserves an excuse.

The second party’s proof is that silence, once knowledge of the sale exists, is an indicator of consent to relinquish the right.

As for the partner who is present, the jurists differ regarding the time at which the right of pre-emption becomes obligatory for him. Al-Shāfiʿī and Abū Ḥanīfah maintain that it becomes due immediately, provided that he knows of the sale and can make the claim; if he knows, is able, yet does not act, his pre-emption lapses—except that Abū Ḥanīfah says it does not lapse if he records his intention before witnesses, even though he delays.

Mālik, however, does not deem it immediate; rather, the period for exercising it is, in his view, expansive. He voiced two opinions about whether that period is limited. On one occasion he said it is unlimited and never comes to an end unless the purchaser erects a building or makes a major alteration in the property while the pre-emptor, though present and aware, remains silent. On another occasion he fixed a limit: one year, according to the more common report, though some said more than a year, and it is also related from him that the right does not lapse within five years.

Al-Shāfiʿī adduces as evidence the report in which the Messenger of Allah—peace and blessings be upon him—said:

“Pre-emption is like untying a tether,”

and it has been related from him that its term is three days.

Those who do not let silence nullify pre-emption argue that silence by itself does not cancel the right of a Muslim unless accompanying circumstances clearly show he has abandoned it. This view is closest to al-Shāfiʿī’s legal principles, for in his methodology one does not attribute statements to a silent person even when conditions suggest his approval; yet, as I understand, he here relied on transmitted evidence.

This concludes the discussion of the elements of pre-emption and the conditions that validate it; what remains is the discussion of its rulings.

Section Two: The Rulings of Pre-emption

These rulings are many, but we shall mention those in which disagreement among the jurists of the regions is well known. One such matter is their dispute over whether the right of pre-emption is inherited. The Kūfan jurists hold that it is not inherited, just as it may not be sold. Mālik, al-Shāfiʿī, and the scholars of the Hijaz hold that it is inheritable, by analogy with property in general. The cause of this disagreement has already been explained in the discussion of rescission for defect.