Cases in which Pre-emption is Possible
1 Yahya related to me from Malik from Ibn Shihab from Sa'id ibn al-Musayyab
and from Abu Salama ibn 'Abd ar-Rahman ibn 'Awf that the Messenger of Allah, may
Allah bless him and grant him peace, allocated partners the right of pre-emption
in property which had not been divided up. When boundaries had been fixed
between them, then there was no right of pre-emption.
Malik said, "That is the sunna about which there is no dispute among
us."
2 Malik said that he had heard that Sa'id al-Musayyab, when asked about
pre-emption and whether there was any sunna about it, said, "Yes.
Pre-emption applies to houses and land, and it only applies between
shareholders."
3 Malik related to me that he heard the like of that from Sulayman ibn Yasar.
Malik spoke about a man bringing one of his partners in a shared property by
paying the man with an animal, a slave, a slave-girl or some such equivalent in
goods. Then later on another of the partners decides to exercise his right of
pre-emption, and he finds that the slave or slave-girl has died and no one knows
what her value had been. The buyer claims that the value of the slave-girl was a
hundred dinars while the partner with the right of pre-emption claims that her
value was only fifty dinars.
Malik said, "The buyer takes an oath that the value of his payment was a
hundred dinars. Then, if the one with the right of pre-emption wishes, he can
compensate him or else he can leave it, unless he can bring clear proof that the
slave or slave-girl's value was less than what the buyer has said. If someone
gives away his portion of a shared house or land and the recipient repays him
for it with cash or goods, the partners can take it by pre-emption if they wish
and pay off the recipient the value of what he gave in dinars or dirhams. If
someone makes a gift of his portion of a shared house or land and does not take
any remuneration and does not seek to do so, and a partner wants to take it for
its value, he cannot do so as long as the original partner has not been given
recompense for it. If there is any recompense, the one with the right of
pre-emption can have it for the price of the recompense."
Malik spoke about a man who bought into a piece of shared land for a price on
credit, and one of the partners wanted to possess it by right of pre-emption.
Malik said, "If it seems likely that the partner can meet the terms, he has the
right of pre-emption for the same credit terms. If it is feared that he will not
be able to meet the terms, but he can bring a wealthy and reliable guarantor of
equal standing to the person who bought the land, he can also take possession."
Malik said, "A person's absence does not sever his right of pre-emption. Even
if he is away for a long time, there is no time limit after which the right of
pre-emption is cut off."
Malik said that if a man left land to a number of his children, then one of
them who had a child died, and the child of the deceased sold his right in that
land, the brother of the seller was more entitled to pre-empt him than his
paternal uncles, the father's partners."
Malik said, "This is what is done in our community."
Malik said, "Pre-emption is shared between partners according to their
existing shares. Each of them takes according to his portion - if it is small,
he has little, if it is great, it is according to that. That is if they are
obstinate and contend with each other about it."
Malik said, "In the situation where a man buys out the share of one of his
partners, and then one of the other partners says, 'I will take a portion
according to my share,' and the first partner says, 'If you wish to take all the
pre-emption, I will give it up to you. If you wish to leave it, then leave it,'
then if the first partner gives him the choice and hands it over to him, the
second partner can only take all the pre-emption or give it back. If he takes
it, he is entitled to it. If not, he has nothing."
Malik spoke about a man who bought land and developed it by planting trees or
digging a well etc. and then someone came and, seeing that he had a right in the
land, wanted to take possession of it by pre-emption. Malik said, "He has no
right of pre-emption unless he compensates the other for his expenditure. If he
gives him a price which covers what he has developed, he is entitled to
pre-emption. If not, he has no right to it."
Malik said that someone who sold off his portion of a shared house or land
and then, on learning that someone with a right of pre-emption was to take
possession by that right, asked the buyer to revoke the sale, and he did so, did
not have the right to do that. The pre-emptor has more right to the property for
the price for which he sold it.
Referring to the case of someone buying an animal and goods (that are not
shared property) along with a section of a shared house or land so that when
anyone demands his right of pre-emption in the house or the land, he says, "Take
what I have bought altogether, for I bought it together," Malik said, "The
pre-emptor need only take possession of the house or land. Each thing the man
bought is assessed according to its share of the lump sum the man paid. Then the
pre-emptor takes possession of his right for a price which is appropriate on
that basis. He does not take any animals or goods unless he wants to do so."
Malik said, "If someone sells a section of shared land and one of those who
have the right of pre-emption surrenders it to the buyer and another insists on
taking his pre-emption, the one who refuses to surrender has to take up all the
pre-emption and he cannot take according to his right and leave what remains.
"In the case where one of a number of partners in a single house sells his
share when all his partners are away except for one man, and the one present,
when given the choice of either taking the pre-emption or leaving it, declares,
'I will take my portion and leave the portions of my partners until they are
present. If they take it, that is that. If they leave it, I will take all the
pre-emption,' Malik said, 'He can only take it all or leave it. If his partners
come, they can take their portion from him or leave it as they wish. If this is
offered to him and he does not accept it, I think that he has no pre-emption.' "
35.2 Cases in which Pre-emption is not Possible
4 Yahya said that Malik related from Muhammad ibn 'Umara from Abu Bakr ibn
Hazm than 'Uthman ibn 'Affan said, "There is no pre-emption with land in which
boundaries have been fixed. There is no pre-emption with a well or in male
palm-trees."
Malik said, This is what is done in our community."
Malik said, "There is no pre-emption with a road, whether or not it is
practicable to divide it."
Malik said, "What is done in our community is that there is no pre-emption
with the courtyard of a house, whether or not it is practicable to divide it."
Malik spoke about a man who bought into a shared property provided that he
had the option of withdrawal and the partners of the seller wanted to take what
their partner was selling by pre-emption before the buyer had exercised his
option. Malik said, "They cannot do that until the buyer has take possession and
the sale is confirmed for him. When the sale is confirmed, they have the right
of pre-emption."
Malik spoke about a man who bought some land which remained in his possession
for some time. Then a man came and saw that he had a share of the land by
inheritance. Malik said, "If the man's right of inheritance is established, he
also has a right of pre-emption. If the land has produced a crop, the crop
belongs to the buyer until the day when the right of the other is established,
because he has tended what was planted against being destroyed or being carried
away by a flood."
Malik continued, "If it has been a very long time, or the witnesses are dead,
or the seller has died, or they are both alive but the basis of the sale and
purchase has been forgotten because of the length of time, pre-emption is
discontinued. A man only takes his right by inheritance which has been
established for him.
"If his situation is not like this because the sale transaction is a recent
one and he sees that the seller has concealed the price in order to sever his
right of pre-emption, the value of the land is estimated, and then he buys the
land for that price by his right of pre-emption. Then he buys the land for that
price by his right of pre-emption. Then the buildings, plants or structures
which are extra to the land are looked at so that he is in the position of the
person who has bought the land for a known price and then after that has built
on it and planted. The holder of the pre-emption takes possession after this is
concluded."
Malik said, "Pre-emption applies to the property of the deceased as it does
to the property of the living. If the family of the deceased fear to break up
the property of the deceased, then they share in it and sell it, and they have
no right of pre-emption over it."
Malik said, "There is no pre-emption among us in the case of a slave or
slave-girl, or a camel, any animal, nor in clothes or a well which does not have
any uncultivated land around it. Pre-emption pertains to what can be usefully
divided, and to land in which boundaries occur. As for what cannot be usefully
divided, there is no pre-emption in it."
Malik said, "Someone who buys land in which people at hand have a right of
pre-emption refers them to the Sultan and either they claim their right or the
ruler surrenders it to him. However, if he were to leave them and not refer
their situation to the ruler whilst they knew about his purchase but they leave
it a long time before coming to demand their pre-emption, I do not think that
they should have it."
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