Does an agent (Wakil) appointed in a sale transaction forfeit their right of preemption (Shufa'a)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption is not forfeited if the claimant acts as an agent in the sale, regardless of whether the agency is for the seller or the buyer. This view is cited by Al-Sharif and Abu Al-Khattab, and it is the apparent position of the Shafi'i school. The basis for maintaining the right is that the claimant is merely an agent, and agency does not negate the right, similar to other agency arrangements. Furthermore, the claim that ownership transfers to the agent is invalid; ownership transfers to the principal (Muwakkil). Even if it were to transfer momentarily to the agent, the act of claiming preemption is against the principal's property, not against the agent's own property. The suspicion of self-dealing (Tuhmah) is irrelevant because the principal appointed the agent aware of their right to preemption and consented to their actions regardless. Consequently, if an owner instructs their agent to sell their half share along with the partner's half share, preemption is established for each party in the portion sold belonging to the other partner.
Supporting text
Al-Qadi and some Shafi'is argue that if the agent is for the seller, the right of preemption is forfeited due to suspicion of bias, as the agent might aim to lower the price for their own benefit. They distinguish this from the buyer's agent. Additionally, the Ahl al-Ra'y state that the buyer's agent forfeits the right based on their principle that ownership transfers to the agent, meaning they cannot claim preemption against themselves. Al-Qadi further contends that preemption is only established over the agent's share, not the principal's share, in the scenario where the owner instructs the agent to sell both shares.