Is the buyer obligated to hand over the property before receiving the price from the preemption claimant?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The buyer is not obligated to hand over the share until the price is received. If the price is present, delivery must occur. Imam Ahmad, according to one narration by Harb, stated that the claimant is given a look-ahead period of one or two days, as determined by the judge, but no longer. This is the position of Malik. The essence of the ruling is that taking possession by preemption constitutes acquiring the sold item for a price, and therefore does not require the prior presentation of the price, similar to a regular sale. If a stipulated period is set and the claimant presents the price within it, the transaction stands; otherwise, the judge invalidates the preemption claim and returns the property to the buyer.
Supporting text
Ibn Shubruma and the companions of Al-Shafi'i hold that the claimant is given three days, as this is the final limit for scarcity, after which the claim is voided if the price is not presented. Abu Hanifa and his companions hold that preemption cannot be exercised, and the judge does not enforce it until the price is presented, because the claimant takes the property without the buyer's consent, thus requiring the tender of the counter-value, just like delivering the sold item in a sale.