Does the absent person's right of preemption lapse if he is capable of securing witnesses upon learning of the sale but fails to do so?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The apparent ruling is that if the absent person knows of the sale and is able to arrange for witnesses and make a claim but does not, his right of preemption lapses. This applies whether he was able to appoint an agent or not, or whether he traveled immediately or stayed put. The justification is that the act of securing witnesses (Ishhad) stands in the place of the direct claim, and what is required for the claim is required for the witnessing; failure to meet the requirement lapses the right, like a present person failing to claim promptly.
Supporting text
One view suggests that if the absent person travels immediately toward the buyer's locale without securing witnesses, his preemption might not lapse, as his travel implies the intention to claim. Another view grants him a specific period after learning, equivalent to the travel time there and back, justifying the delay due to his apparent excuse. A third opinion holds that witnessing is not required if the excuse for not claiming remains, as the excuse itself mitigates the failure to witness.