Who has priority regarding a share (shaqas) subject to preemption (shuf'a) when the original seller rescinds the sale?
General Chapter
Al-Mughni
Book of the Insolvent (Bankruptcy)
Primary text
The seller is entitled to reclaim the share first. This view is held by Ibn Hamid, based on a report (khabar). The rationale is that if the seller takes back the share, the preemption right holder's situation returns to what it was before the sale, thereby removing any harm to the preemption holder as no new co-ownership involving others has arisen concerning the property.
Supporting text
A second view holds that the preemption holder has priority because their right is established earlier. The seller's right to rescission is established by the prohibition (holding the property back), whereas the preemption holder's right is established by the sale itself. Furthermore, the preemption holder's right is considered stronger as it allows them to claim the share from the buyer and anyone to whom the buyer subsequently transfers it, while the seller's right is tied only to the property while it remains in the buyer's possession. If the buyer sold it back to the original seller, gifted it, or rescinded the sale, the preemption right would not lapse. The seller's right of rescission only applies to property upon which no third party's right has become attached; this property has had the preemption right attached to it.